Fall 2011 | Issue 21

44 | The Berlin Journal | Number Twenty-One | Fall 2011
can help to frame minority perspectives in
universal terms that garner broader support.
But ICs cannot impose their own legal
solutions absent the support of domestic
interlocutors.
International judges, like all political
actors, must make a political calculation
about the power and potential of certain
interlocutors. And they must take into
account the counter forces that want the
opposite interpretation. We thus need more
specific conjectures about how ICs make
these calculations and influence outcomes.
It seems reasonable to presume that the
more a government is out of sync with its
domestic constituents, the easier it is for
an IC to figure out what it should do – it
should help domestic allies achieve widely
shared values or help governments resist
the pressure of domestic actors who want
to deviate from international legal agreements.
International human rights law
and international humanitarian law are
especially likely to connect with widespread
sentiments that may be voiced by few but
shared by many.
Less clear is what ICs should do when
the law pushes in a direction that powerful
domestic interests do not like, or
when international law disrupts domestic
constitutional balances. Of course, states
LESS CLEAR IS WHAT INTERNATIONAL COURTS SHOULD DO
WHEN THE LAW PUSHES IN A DIRECTION THAT POWERFUL
DOMESTIC INTERESTS DO NOT LIKE, OR WHEN INTERNATIONAL
LAW DISRUPTS DOMESTIC CONSTITUTIONAL BALANCES.
can withdraw from international treaties,
which would be both a democratic choice
and legally legitimate. But there are other
pathways forward. As the tipping point
argument suggests, international legal
interpretation is a collaborative enterprise.
There is more flexibility in international
law than many presume, and
domestic actors are able to influence IC
decision-making and ensure that international
rules do not undermine cherished
national values. Because states care about
being seen as law-abiding actors, legal
interpretation is able to shape how governments
conceive of their interests and their
options.
This article has suggested that
the advent of powerful international
courts, capable of rulings on state
respect for international law in areas as
diverse as economic law, human rights law,
and war crimes, has its origins in the early
post-war international legal experiments
in Europe. The new international courts
of today are surely not as influential as
Europe’s supranational courts, but I have
suggested that it is a mistake to expect
them to be. We should remember that both
the ecj and ECtHR started out as weak
political institutions, and today’s new ICs
resemble Europe’s ICs of the 1960s and
1970s. The lesson from Europe, therefore,
is that ICs should build political authority
by generating support within national communities
of lawyers, judges, scholars, and
civil servants. This may first require that
an entire generation of senior judges and
law professors retire, and that young law
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