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"Authority, Legitimacy and Participation in International Legal Institutions: The case of the Milosevic Trial"
Legal philosophers sometimes claim that what distinguishes legal systems from other normative systems is that they claim legitimate authority. However, this jurisprudential claim is often attacked as opaque and empirically unsubstantiated. The paper, which is part of a larger project entitled "Law as Authority: A Concept of International Law", provides an empirical starting point from which this and other jurisprudential questions can then be explored. It does so by studying, using an ethnomethodological approach, the means through which international legal institutions socially construct their authority and communicate their claim of legitimacy. This is achieved by applying an Interactionist (dramaturgical) framework to an examination of the phenomenology of one test-case: the proceedings of the Milosevic trial at the International Criminal Tribunal for the Former Yugoslavia (the ICTY).
Specifically, the paper traces the textual and contextual ways in which the ICTY communicates its claim of legitimate authority by way of administering transitional justice on an international, rather than a national, level. It then goes on to argue that what is in fact attempted, and perhaps achieved, through internationalizing the trials is the internationalization of the process itself. The subject of the transition from an illiberal and illegitimate regime to a liberal and legitimate one is not in fact the Former Yugoslavia, but the 'international community' itself. The rule of law that the ICTY seeks to vindicate is not only law as such, and not necessarily the law of the former-Yugoslavia, but the rule of international law. More generally, the fundamental social change that is actually attempted is a shift towards a quasi-monist international state-like governance apparatus. Some consequences to the actual legitimacy of the ICTY, and other legal institutions, are then pointed out in conclusion.
