Legitimacy and International Adjudicative Bodies

I. INTRODUCTION On May 1, 2007, Bolivia informed the World Bank of its decision to denounce the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Conven- tion).1 On July 9, 2009, Ecuador followed suit.2 Both Bolivia and Ecuador sought to divest the International Centre for the Settlement of Investment Disputes (ICSID), an investor-state dispute resolution forum, of jurisdiction to decide disputes involving them. Bolivia and Ecuador are the only states to denounce the ICSID Convention, but their denunciation comes at a time of much debate about ICSID's "legitimacy."3 Attempting to avert a "legitimacy crisis," often without defining the term and assuming a common definition exists, various individuals have proposed a myriad of reforms, ranging from creating an appellate body to influencing the direction of ICSID's jurisprudence to rooting out perceived institutional bias.4 The lack of theoretical precision in discussing ICSID's legitimacy is not surprising. Scholars have not directly addressed the question of what makes an international adjudicative body legitimate. Although various authors have discussed the legitimacy of nonadjudicative international institutions, U.S. courts (particularly the U.S. Supreme Court),5 and international legal rules,6 the literature lacks a systematic attempt to unpack this concept specifically for international adjudicative bodies.7 Attempting to define, identify, and analyze legitimacy challenges that international courts and tribunals face is useful to those seeking to expose and remedy their flaws and deepens our understanding of how these institutions should function. Perceptions of legitimacy may protect an institution from abolishment or fundamental alterations of its role.8 Actors within the international system- individuals, states, or nongovernmental organizations-may wish to preserve the legitimacy of a particular institution because they are committed to the substantive norms or legal regime that the tribunal is charged with interpreting and upholding. If adjudication is preferable to available alternatives, understanding what makes a court or tribunal legitimate becomes essential. The increasing delegation of international dispute settlement to adjudicative bodies, or the increasing "judicialization" of the international system, seems to indicate a preference for resolving disputes in the courtroom rather than on the battlefield or at the negotiating table.9 Although international actors and scholars have made progress over the last decade toward developing a theoretical framework on international courts and tribunals, "the inquiry lacks a broad theoretical foundation,"10 and "the field is still in its infancy."11 Developing a common framework for analysis will allow more fruitful comparative studies of international courts and tribunals. This Article attempts to contribute to the scholarly discussion surrounding international adjudicative bodies by using legitimacy as an organizing principle. This Article proposes a theory of legitimacy tailored to international courts and tribunals. Part II begins by defining an "international adjudicative body" as a dispute resolution mechanism-also called a court or tribunal-that decides disputes between litigants, at least one of whom is a state. The analysis is limited only to adjudicative bodies where states are involved as litigants because a different set of legitimacy-influencing factors may be present when only private parties are involved. Part II then lays out a theory of legitimacy specifically for international adjudicative bodies and distinguishes it from prior theoretical approaches, particularly those reliant on "legal legitimacy" alone. Borrowing in part from Daniel Bodansky and others, the Article defines a legitimate international adjudicative body as one whose authority is perceived as justified.12 Part II identifies the three factors that influence perceptions of justified authority, while Part III discusses them in depth. …