2. Signs of authority

The empiricist methods just outlined are not meant to merely describe international legal life, but are also intended to render it intelligible, or to provide an explanatory account of its features. Holtermann and Madsen,Footnote ¹² mentioned above, seek to explain the ‘force’ of the directives issued by those who participate in international legal life, while for other empiricists the focus is on the authority of participants or patterns of compliance by subjects. Such methods aim to explain what causes the rules, decisions or procedures of the international legal order to take one form and not another, and what effect those rules and so on have on those to whom they are addressed.Footnote ¹³ Some, for example, see the broader geopolitical context in which international courts issue their judgments as having an important causal influence on state compliance.Footnote ¹⁴ It is fair to assume that the successful acts of judges (which are in part the result of their aptitudes, maxims and personality) are also causal in some sense. As the mechanics of social explanation are employed frequently in the argument which follows, a number of general comments about them are appropriate to begin our discussion.

When engaged in legal science, the empirical signs we observe (from the written judgment of an international court through to an act of compliance) are our explanandum: that which we wish to explain, in terms of causation. How is such an explanation – the explanans – possible? If we were to explain the written judgment of a court, its content is likely to be to the result of the deliberations of judges. These deliberations can (in principle, and to some extent) also be observed, although in practice they are normally conducted behind closed doors. Ultimately (and returning to Horkheimer once again), these motivations and beliefs are the subjective origins of the observed signs that legal science aims to interpret, and they are, in this sense, causal. They are, though, empirically obscured from view.

But one would be mistaken to assume that the signs we observe are only the product of self-conscious, unmediated, acts of will. Rather, the subjective origins of the signs (i.e., the legal judgments) we wish to make sense of are presumably mediated by the norm-governed argumentative and dialogical context and process in which they arise. That is, subjective beliefs and motivations normally only have an effect if presented in a way which speaks to the ‘inner juristic’ (as Weber put itFootnote ¹⁵) values, norms and beliefs that constitute the axiological framework held by participants within the legal system.

The axiological structure of social institutions has been described in a number of epistemologically diverse but in many respects similar ways in the literature following Weber: ranging from Hart’s ‘internal perspective’ (where legal normativity mediates the relationship between the official and the legal system), through Bourdieu’s ‘habitus’ (where ‘doxa’ mediates the relationship between subjective agency and institutional structure) and Gadamer’s ‘horizon’Footnote ¹⁶ (which describes the interaction between the author’s meaning of a text and the subjective experience of a reader or interpreter). But whichever way we conceptualize it, the point is that within a legal context, those to whom the law is primarily addressed – citizens, states or other subjects – are expected to employ (themselves, or through their legal counsel) this shared axiological framework when seeking support from public authorities for protection or promotion of their interests, or when seeking redress for their grievances. While taking a negative tone, G. F. Puchta (a Roman legal historian, who influenced Weber’s understanding of the formality of modern law) summarizes this point well:

Law is, in this sense, a normative language for interest negotiation in the public sphere, which claims authority in relation to its addressees. Formally speaking authority exists where agent B defers to agent A’s judgement, which in the context of law takes the form of a directive made by A in relation to B’s conduct. For B to obey means that B acts on A’s directive, and not on B’s own reasons, insofar as those reasons lead to acts different from those specified by the directive. Where authority exists within a legal system one would think it is somehow the product of the normative value which the legal subject affords to the shared axiological framework just mentioned. This is how the authority claim of an official in a legal system becomes actualized. So, for instance, when international lawyers talk about the authority of an international court, they will claim that it arises because those states subject to the court’s jurisdiction have given their consent to abide by its directives; that the court’s directives provide solutions to complex co-ordination problems each state has an interest in solving; that the decision conforms to standards of administrative justice; or, because following the court’s directives allows states to be more likely to comply with the moral or strategic reasons that apply to them. These are all the practical reasons why a court’s directives, and the axiological framework in which these directives are couched, are treated as authoritative.

By contrast, a way of thinking about power (captured by the Spinozian category of potestas, and discussed in detail in Section 3, below) is as a capacity of A to compel the will of B through various means. The mugger, for instance, can compel by significantly altering the range and appeal of the various choices open to his victim. And a state can compel in a similar way by using its criminal law and justice system to threaten or use physical force. Admittedly, international courts often employ more subtle forms of compulsion than the blunt threats of a mugger, or the coercive tools at the disposal of the state, but this notwithstanding, a state’s failure to comply with the directives of an international court can lead to, or coincide with, significant economic or reputational damage, which similarly can alter the range and appeal of choices of litigants. The prestige, standing, esteem or honour of the global governance body is a resource – sometimes called symbolic capitalFootnote ¹⁸ – which can be drawn on to compel addressees within the field of global governance.

From the perspective of practical reason (i.e., how I should act qua moral agent), authority and power are readily distinguishable. However, sociologically, these two concepts are difficult to distinguish for the following reason. What is sociologically observable are signs that indicate a possible conjunction between the content of directives of an authority-claiming court and the actions of a state to which its directives are addressed. To give an example: the (hypothetical) North African Court of Arbitration (NACA) issues a judgment requiring that Morocco return some religious artefacts it possesses to Western Sahara, which is determined to be the rightful owners. The observable conjunction in this case is the return of the artefacts following the judgment requiring them to do so. What we then seek is the explanans of this conjunction. One explanans is that Morocco has accepted NACA’s authority. Morocco did not consider that it should return the artefacts, but once the Court gave its judgment it has a significant new reason that makes a practical difference to the balance of reasons that it possesses, and so it returns them. However, it is obscure whether the Court’s authority was the cause of Morocco’s compliance. That is, its compliance looks the same whether it was NACA’s authority, or some other reason, which motivated Morocco to return the artefacts. Morocco could have been motivated by concerns about the shame or reputational damage which would be likely to occur if it did not comply with the judgment. Alternatively, Morocco could have been worried about the likelihood that NACA could mobilize state parties to engage in countermeasures against Morocco. It may have changed its mind after hearing in pleadings about the importance of the artefacts to the culture of those who inhabit Western Sahara; or, it may be that it was going to return the artefacts anyway, but had reason to make matters difficult for the government of Western Sahara by going to court. The point is that although we see the conjunction between the directive and the act, it is difficult to disentangle authority from strategic reasons, agreement or compulsion sociologically. This difficulty arises because we do not have empirical access to Morocco’s actual reason for apparent compliance to NACA’s directive.

The ‘empirical turn’ in the study of the authority of international law and its institutions, at least as described in an important book on the subject edited by Alter, Helfer and Madsen, seeks to be ‘agnostic as to why an audience recognizes a court’s authority and to the subjective beliefs that underlie that recognition’.Footnote ¹⁹ This we think is a mistake because it leaves legal science incapable of disambiguating the various explanations for apparent compliance to legal norms or judgement, of which authority is just one. Alter, Helfer and Madsen interpret specific pre-interpretative signs (an act of compliance alongside ‘either an express statement of intent to comply, or the implied acceptance that accompanies a government’s decision to implement or give effect to a court’s judgment’.) as indicative of the de facto authority of the court. ^{Footnote 20} The justification for taking this approach is that subjective motivations or reasons are hidden from view:

The consequence of this move is that it renders various reasons for compliance irrelevant for the purposes of inquiry. All reasons for a state’s action – whether the product of power, persuasion, acquiescence or habit – are subsumed under a category of de facto authority which focuses only on empirical signs of compliance. Authentic reasons for compliance are unknowable, they argue, and stand in the way of the broader empirical inquiry into the practices and contextual factors that relate to social actions in and around the many different international courts in operation today.

Another version of empiricism already mentioned, offered by Madsen and Holtermann, seeks to tackle this problem by incorporating a study of beliefs held by addressees about the validity of legal rules.Footnote ²² They argue that if addressees indicate that they are following a rule because they believe it to be authoritative, a distinction can be made between various reasons or explanations for decisions or compliance. But their concern is not about the axiology internally held by participants within the legal order about the rules which comprise it. Rather, they are concerned, as the empiricist agenda seems to prescribe, with the pre-interpretative signs of compliance: i.e., observable indications given by the addressee that they consider a particular rule, judgment or court authoritative. But these pre-interpretative signs may appear to show a coincidence between the rule and the addressee’s stated reasons for compliance – after all, people generally say they are obeying the law – but this does not mean that the reason for their compliance is the result of an acceptance of authority, and not power, or agreement after they are persuaded by the reasoning of a court. The observed attitudinal signs of addressees towards rules remain fundamentally the product of a chain of causation which begins with the subjective orientation of the actor to legal rules, which remains unverifiable. Even as we get closer (through empirical investigation) to the explanans, our inquiry still is at the level of the explanandum (i.e., in this case, with the observable sign). For Holtermann and Madsen, we have now reached the limits of explanatory inquiry. But if this is the case, the causes of what we observe remain opaque, and an explanation of how fundamental categories of legal reason, such as authority, which may provide such an explanans, remain equally so.

3. Authority and consensus as power

Does this mean that we should completely give up on the – admittedly more philosophical – commitment to study the role of the opaque meanings and reasons embedded within this wide field of visible signs? One affirmative answer to this question stems from a view that consensus and authority can ultimately be reduced to power.

As indicated above, we tend to think about power in relational terms: the power of the employer to compel the will of the employee, or the influence of the charismatic, wealthy or well-connected over political decision-making processes. These are but complex examples of a much simpler formal relationship between persons with power and those to whom that power is addressed. Formally or analytically, power is the capacity of a person to have his ends or desires expressed in the world. Kant expresses it this way in his discussion of the relationship between agency and coercion. His view is that we choose subjective ends which we have an interest in achieving, and these form motivations for us to act. However, these particular ends may not, and need not, be shared by others. ^{Footnote 23} A person who wills an end, also necessarily wills the means that are indispensable to achieve them (if the person does not will the means, then he must give up his ends), and only with those means can he become an ‘acting cause’, ^{Footnote 24} and this is how it is possible that the world can come to reflect the contents of his will. However, when action does alter the world, it is coercive in the specific and technical sense that it alters the capacities of others to pursue their separate and distinct ends. Kant tends to illustrate this argument through the taking possession of physical objects, but his point goes beyond possession, and his discussion of property is an illustration of a more general claim about agency. That is, taking possession is only one way by which we ‘actualize’ the ends that we desire ‘in the sensible world’. ^{Footnote 25} This capacity to achieve ends can be said to be a rudimentary, analytical, description of power. Steven Lukes shares this conception of power but expresses it in a way that is useful for sociological inquiry. Power is, he writes, a

For Lukes then, power can only be apprehended sociologically when we can state the outcome of its exercise. But there is more to a sociological concept of power than this. For A to have power, it would have to be the case that the observer can establish a causal connection between A’s will that X happens and the actual occurrence of X. This, however, brings us into territory so complex that even Lukes is uncertain:

This is precisely where the difficult conceptual distinction between power and authority resides. Our point is that its residence is not accessible to empirical inquiry. What are the consequences of this antinomy for sociological analysis of international court authority?

To begin to answer this question, let us return to consider the operation of Kant’s concept of power. One familiar sub-category of this concept of power is the capacity of A to compel addressee B to undertake actions so that the world reflects X (which is A’s will) and not Y (which is B’s will). This is domination of the will, which is achieved by (actually or potentially) limiting, or altering the costs of, the choices of the addressee. To return to our example, NACA can dominate the will of Morocco by, for example, threatening to exercise its capacity to shame, or cause reputational damage to, Morocco. In a real example, the European Court of Justice (or ECJ, as it was then known) became a powerful institution partly because obeying its rulings had become ‘… part of the package of the European Integration’. Being seen as closely linked to a larger political project that enjoyed broader support meant that ‘… states and other actors that wished to reap the benefits of regional integration had to accept the court and its authority [actually, power] as part of that overall package’.Footnote ²⁸

This concept of power appears consistent with part of Alter, Helfer and Madsen’s empirical work on the authority of international courts. Power, for them, is ‘defined as the ability to move governments and private actors in the direction indicated by the law’: ^{Footnote 29} so NACA moves Morocco and the ECJ moves member states, so to speak, so that in both cases the latter acts in accordance with the judgment of the former. But they also see de facto authorityFootnote ³⁰ as a form of power: authority is a capacity to dominate the will of those subject to it. So, ‘[w]hen a court’s authority endures over time, when deference is extended across issues, cases, and time, the court’s power increases’. ^{Footnote 31} Authority, then, is a capacity of NACA or the ECJ to dominate the choices of Morocco or member states, which causes the latter to act differently to the way they would have otherwise acted.

This is an important strategy by which it is possible to avoid the problem of motivations discussed in section (B). But there is something counter-intuitive about it. If Morocco recognizes the judgment of NACA to return the artefacts, agrees that it is under a moral duty to return them (which takes the form of agreement or consensus with the judgment of the Court), or was going to return them anyway, it appears irrelevant that the Court has the power to compel it. Now, it is the case when political philosophers consider authority, it tends to be in terms of an attempt to justify the exercise of forms of power, such as state coercion. However, where the concept of authority is considered in relation to the sociological observation of compliance, power and authority come apart as distinctive explanations (explanans) for the signs of compliance we observe (explanandum). If our aim is to explain Morocco’s compliance with NACA’s judgment, where there is authority or consensus, there is no need for power to be exercised, and Morocco’s acknowledgement of a duty or obligation to comply with the Court’s judgment appears to be evidence of the absence, rather than existence, of power. By the same token, where Morocco does not accept the authority of, or agree with, NACA, it needs power to compel Morocco to do that which it refuses to do. Morocco’s compliance can only be explained as a result of NACA’s exercise of power when Morocco’s will, ex ante and ex post the Court’s judgment, is to not comply with its judgment, but it does so anyway. If this can be shown, we have prima facie evidence of power, but not evidence of authority. On the basis of this example, evidence of the motivations of addressees of the Court towards its directives seems to be necessary to identify the existence of power.

Another, perhaps now familiar, strategy to avoid this problem claims to allow authority and power to be conjoined within sociological analysis. This is invoked by Holtermann and Madsen in their articulation of European New Legal Realism.Footnote ³² That is, authority could be rendered as a form of symbolic power articulated in terms of NACA’s reputation, prestige and so on. It may be that when NACA issues its judgment, Morocco simply acts out of a routine assumption that to do so is something that ought to happen. In the language of Pierre Bourdieu, the judgment has the status of ‘doxa’, where ‘the immediate agreement [is] elicited by that which is self-evident or normal’. ^{Footnote 33} On this view authority represents NACA’s power to establish and control ‘doxa’ within the global governance field, and thus compel those subject to its directives. On this reading, evidence for the absence of power (voluntary acceptance or awareness of a duty) now becomes evidence for its very existence (because acceptance is treated as having emerged from a powerful agent who elicits acceptance by controlling the content of doxa), and there is no meaningful distinction between social practices which are constituted by power relations, and those which are not. Apparent consensus, or authority, as an attribute of willingness and choice, do not appear to be genuinely possible and the distinction between authority and power collapses: using Weber’s, rather than Bourdieu’s, language, Herrschaft (or legitimate rule) becomes just one manifestation of Macht.

Whether this is defensible is a philosophical question about the possibility of will, choice and freedom, which so troubled Lukes in his analysis of the concept of power. And like Lukes, we have to accept that the answer to this question is something that goes beyond what can be considered here. However, stringency and consistency in analysis remain important, and these principles ought to be directed to the argument just set out. How is it possible for the imaginary NACA’s behaviour to be the outcome of its voluntary choices to develop its authority and make judgments,Footnote ³⁴ while, at the same time, Morocco’s behaviour, when it is convergent with NACA’s judgments, is necessarily, the causal outcome of the exercise of NACA’s power, and not the product of its own voluntary choice?Footnote ³⁵ If this more specific question cannot be answered, then agency seems to appear and disappear arbitrarily within sociological explanation in a manner which seems more influenced by the story the interpreter wants to tell, and less about methodological coherence. To be consistent, we must hold that if it is possible for courts to build, strategize, and decide, then it must be equally possible for addressees to choose to agree or accept the directives of that same Court, and for this reason we should not be too quick to collapse authority and consensus to power. What this means conceptually is that if agency has a role in the explanation of legal practice, then we cannot dispense with voluntary choice and normative acceptance. But if this is the conclusion of a consistent analysis of agency applied to the study of international courts, then we return to the opening question: how do we distinguish the exercise of power from consensus or authority if both look the same empirically?

4. Understanding authority

One possibility is to return to legal reason. It may be that this – i.e., the normative language for interest negotiation in the public sphere – is in itself an important source of authority, and the basis for distinguishing authority from power. Some of the empirical approaches discussed here do glimpse the importance of this particular aspect of the object of inquiry. For example, Holtermann and Madsen argue that axiological beliefs about legal rules are important to their attempt to explain the authority of international courts.Footnote ³⁶ However, as explained above, their concern remains with pre-interpretative signs which may tell us something about hidden axiological beliefs. But signs are not the beliefs themselves, and so their approach does not really answer our problem.

Here is one relatively straightforward way of thinking about the causal relationships between legal norms and observable compliance. Minimally, ad hoc commands could possess (content-dependent) authority so long as those commands were perceived as morally justified. Thus, observable compliance could be explained in terms of moral validity. However, it is not plausible to see judicial decision-making solely in these terms, simply because of the nature of law and the judicial function.Footnote ³⁷ Rather, in their attempt to resolve disputes, international courts apply legal texts (i.e., lex scripta) in a way that is consistent with a set of legal formalities, as well as legal concepts such as sovereignty equality, state consent, or dominium,Footnote ³⁸ which shape that court’s existence and operation. Contextual factors are also a cause of compliance. But it is the case that context causes compliance with the law, and this is why context is relevant to the study of legal authority.

Focusing on the formal characteristics inherent in law, compliance with the lex scripta is only possible if it is followable, and is followed by the court. This need not imply formalism (as a legal theory), but it does imply that the court’s judgment fits past practices (for Ronald Dworkin); that legal rules are applied (for Hart); or that there is congruence between the law as stated and the law as applied and that legal rules are prospective and clear action guiding directives (for Lon Fuller). This is the case whether or not addressees comply because they are compelled to do so, or because they believe it to be authoritative: in order to comply with the law, what is required of them must be knowable. Furthermore, Dworkin, Gerald Postema, and Nigel Simmonds all have observed that without some judicial sensitivity to the addressees’ interests and values when interpreting the formal law it is unlikely to provide a stable system for co-ordinating the actions of the court’s addressees.Footnote ³⁹ These legal philosophers all defend the claim that law must have a particular substantive content, as well as form, if the possibility of compliance by addressees is to be possible. In practice, then, the interpretation and application of legal doctrine to social conflicts (embodied in the texts of judgments), can be said to be an attempt to rationalize a body of texts into a coherent and connected normative system of rules to which compliance is possible. Thus, de facto compliance to an international court decision cannot be severed from its judgments, which are, in turn, embedded within a broader structure of legal reason.Footnote ⁴⁰

Pre-interpretatively, we observe inter alia legal norms, the judgment of a court, contextual factors and an act of compliance. The formal and substantive constraints just described become interpretative concepts used to explain the causal chain by which the application of legal norms gives rise to compliance. Legal normativity cannot be discarded but must be part of the explanatory framework that brings pre-interpretative observations about international courts, including the context within which they judge, into a causal relation with each other. To explain further, let us reconsider Alter, Helfer and Madsen’s concept of de jure authority, which they disregard and consider to some extent epiphenomenal for the purposes of sociological explanation. A statement of consent to be bound to an international court may be a sign of compliance, as is action consistent with an international court’s judgment. Empiricists are right to see these facts as relevant to questions of authority or compliance. But de jure authority is not the same thing as observed consent. The latter is a pre-interpretive sign which we consider salient in our explanation of the act of compliance. The former, by contrast, is an interpretative normative concept, which is interpolated by the legal scientist to provide an explanation of why the sign of consent gives rise to international court authority, which, in turn, explains the act of compliance to the court’s judgment. De jure authority, as an interpretative concept, allows us to interpret the signs we observe as indicative of the existence of international court authority: it is this concept which renders those signs normatively salient in an account of international court authority.Footnote ⁴¹ The observation of compliance in the absence of signs of consent, or the absence of signs of compliance in the presence of consent, based on this interpretative concept, requires another explanation: for example, the exercise of power in its various forms.

De jure authority is a plausible candidate for an interpretative concept which explains international court authority, not least because it is likely (we would suppose) to be a correct explanation of the signs of compliance that can be empirically observed (B stating that it has consented), even if (for the reasons set out above in Sections 2 and 3) we can never be sure that this is the actual reason for compliance by officials acting on behalf of a state. To make the same point in relation to our hypothetical example: if a judge in NACA appeals to legal rules (e.g., a treaty constituting the court ratified by Morocco and Western Sahara, case law, customary principles, etc.) and applies them in accordance with the rule of law in a way that is sensitive to the interests of Morocco, then we have a sound explanation for Morocco’s compliance. That Morocco complies can be interpreted as the result of self-consciously rational, purposive, behaviour to comply with the authority of the Court. If the court fails to appeal to such rules and principles, or if Morocco does not comply, we may have evidence for the existence of the power of NACA to compel, or of Morocco’s power to resist NACA’s rulings. Thus, by interpolating de jure authority as an interpretative concept, we are able to distinguish between power and authority, in a way that eludes a purely empirical approach. That this is not just pure formalism can be seen by showing how our view corresponds to David Lake’s analysis of authority:

NACA’s ruling represents order and Morocco’s behaviour is either compliant (and thereby supportive of the order) or not (and thereby possibly a challenge to the order). But which interpretative concept do we choose to model this relationship? One condition for choosing a viable explanatory model is that it must ‘fit’ (to use Dworkin’s term), or be a reconstruction of, the practice we seek to interpret: the issuing of directives of international courts to addressees. In defence of de jure authority, it is true that international court authority generally builds upon state consent. De jure authority provides the interpretative basis upon which we can interpolate an authority relationship flowing from legal norm which the state has consented to, through judicial decision, to state action. However, it is well-known that today an international court will develop techniques beyond the formal text of its constitutive roots.Footnote ⁴³ It then must rely upon other bases for its authority, especially those embodied in broader notions of public authority, such as the rule of law, values of administrative justice, proportionality or substantive human rights. For this reason, de jure authority, as an interpretative concept, is too narrow. Thus, as international courts develop their authority, so must the interpretative concepts of legal science adapt to distinguish authority from power.

De jure authority explains why the fact of consent gives the International Court of Justice (ICJ) the authority to claim jurisdiction over states which have given it. A concept of public authority explains why the Appellate Body (AB) of the World Trade Organization is justified in applying the proportionality principle.Footnote ⁴⁴ By contrast, de jure authority also explains why states resist the overreach by the ICJ when exercising its advisory jurisdiction,Footnote ⁴⁵ and why some states (notably the United States of America in 2019 and 2020) reject what it sees as AB’s judicial activism based upon its concept of public authority, or as seen recently, why some domestic courts refuse to follow certain rulings by the Court of Justice of the European Union.Footnote ⁴⁶

One response to our claim could be that the question of authority is a philosophical question; the sociologist could then investigate whether there is compliance by the addressee, and inquire into the possible linguistic signs which offer putative reasons for compliance. Doxa, or, alternatively, Herrschaft, then, is part of this empirical explanation, but questions of authority remain philosophical. This methodological neatness, however, is not plausible and this form of inquiry is not an explanation at all. However, because subjective motivations – which are our explanation – are empirically inaccessible, they have to be interpolated to explain their causal role in what is empirically observed. This interpolation, however, must be both an interpretation of the actual practice, and must be a plausible account of why a state, for example, might be justified in its acts of compliance.

We might go further along the route pointed to by Lake and assume that legal authority emerges from a dialectic in which an international court seeks to maintain an acceptable balance between the normative system which is international law, and its functioning as a mechanism for social co-ordination and conflict management. For example, if the court claims jurisdiction over states which have not given their consent, issues judgments using rules which are not found in underlying treaties, or if it fails to apply doctrine in a way that is relevant to its co-ordination and conflict management role it will risk losing authority: meaning that, those subject to it will not be motivated to treat its judgments as pre-emptive, which, in turn, may lead to a situation where they will not observably comply. De facto authority, then, is at the end of a chain of the complex interaction between doctrine, procedural and substantive fairness in application and reciprocity, which has, at its heart, the internal motivations of judges and their addressees, which in turn is modelled by the ideal-types of authority developed by legal science. In operational terms, the challenge for international courts is to provide solutions to the social conflicts that are brought before them in a way that respects this dialectic, which their judges mediate, between the normative system they apply and the motivations of the addressees to whom that system is addressed. To fully grasp the authority of international courts, therefore, it is necessary to conceptualize, ideal typically, what constitutes normative justification, for without such a concept it is impossible to explain and make intelligible the agency of courts and states (as enacted by officials). Hence, to understand what is authoritative and what is not, is to be able to distinguish between acts that are rooted in a sense of obligation towards upholding an international order from those acts which are motivated by, for example, political ambition or abuse of a powerful position. This is how it is possible to interpret these different motivations as part of the balancing act that results in observed de facto authority, or a lack thereof.

What is more, the legal processes that unfolds when international courts manage this dialectic serves as the basis for generating normative authority. The discursive processes and the political push for international co-ordination that gave rise to these courts in the first place is what initially drives the emergence of international court authority. Law is not only an interpretative practice, but also an argumentative practice, and in the process of legal argumentation the court will be met with a demand for justification. Thomas Risse explains:

This is particularly true in the context of litigation and adjudication in international courts. The litigating parties and the court itself are connected in a communicative structure that is woven by their performance in legal argumentation. The ‘entrapment’ Risse alludes to in the context of international courts points to the way that legal argument is inextricably embedded in social practice. It is not the inevitability of participation in this structure of argumentation that presupposes and affirms the authority of international courts, but the conscious acceptance of it as a valid form of co-operation, collaboration and conflict resolution. This, then, is how the authority of international courts emerges. Our argument has come full circle: voluntary choice embedded in subjective belief lies both at the epistemic beginning and end of attempts to make legal normativity intelligible.