In December 2017, a delegation from the African Court of Human and Peoples’ Rights (ACtHPR) travelled to Cape Verde for a three-day ‘sensitisation mission’. The Court's judges and administrators met with Cape Verde's president and prime minister, leaders of the National Assembly and Constitutional Court, and other top officials. During this visit, the ACtHRP also hosted a public seminar for stakeholders, such as non-governmental organisations (NGOs) and local lawyers.Footnote 1 Between 2010 and 2017, the Court carried out 26 such missions to member states of the African Union (AU).Footnote 2 The Court continues this practice today. As international courts (ICs) have proliferated since the 1990s, these and other forms of judicial diplomacy have become commonplace for many international courts (ICs).Footnote 3 For example, the International Criminal Court (ICC) in 2015 was budgeted approximately 3.5 million euros for ‘outreach’.Footnote 4
Judicial diplomacy is puzzling for several reasons. First, judges undoubtedly interact with other legal professionals as part of their ordinary professional lives, as they have long-term interests to maintain active engagement with academia or professional associations. However, it is not obvious why a court itself would organise these interactions or how they serve a court's interests. Second, these activities are resource intensive. By conducting judicial diplomacy, ICs may need to channel relatively scarce monetary and human resources away from its core functions. Third, judicial diplomacy risks politicising the institution and makes judges seem like politicians. When a reputation for independence and impartiality, or being above the fray of politics, is paramount, visits with current heads of state, national parliamentarians, or special interest groups may feed opponents’ narratives of judicial bias.
Why then do ICs employ judicial diplomacy? Extant literature suggests that judicial diplomacy reflects ICs efforts to mobilise constituencies or to socialise actors to adopt international norms. According to these accounts, judicial diplomacy targets public officials, legal communities, and civil society while emphasising procedural and substantive legal provisions. However, judicial diplomacy often targets the public and communicates value-laden narratives about the courts themselves. To explain these aspects of judicial diplomacy, I consider the role of legitimation. I argue that ICs develop and carry out judicial diplomacy to build their legitimacy, especially when the diplomacy targets the public and presents norm-referential narratives of their processes and outcomes. Evidence from the ACtHPR and the Caribbean Court of Justice (CCJ) lends support to this argument.
This article contributes to literature on international courts, developing the concept of judicial diplomacy to capture a wide array of non-judicial activities conducted by ICs. Defined as the processes by which international courts represent and claim their authority in their interfacing with external actors, judicial diplomacy casts non-judicial activities as strategic political behaviours that support a court's judicial roles. Viewed as diplomacy, non-judicial activities can be clearly recognised as part and parcel to the performance and authority of international courts.Footnote 5
This article also contributes to research on the legitimation of international institutions, which has so far paid minimal attention to international courts. I explain how legitimation applies to international courts and show that legitimation is not exclusively the result of crisis, scandal, and political pressure.Footnote 6 The courts studied here are relatively new institutions, revealing that legitimation can also be part of the normal ‘growing pains’ for today's international institutions. Lacking a history upon which to draw legitimacy, new institutions are likely to develop strategies of legitimation. Moreover, this article brings to light important synergies between legitimation and diplomacy, offering a potential avenue for future research on legitimation and international institutions.
The article proceeds in five sections. First, it develops the concept of judicial diplomacy. Second, it builds on previous research to identify three theoretical accounts for how and why ICs use judicial diplomacy. Turning to the empirical analysis, the third section describes the research design and the fourth provides the case studies. Finally, the article summarises the findings and discusses their implications.
What is judicial diplomacy?
As Ole Jacob Sending, Vincent Pouliot, and Iver Neumann explain,
diplomacy may be defined, in the broadest possible terms, as a claim to represent a given polity to the outside world. Pitched at this level of abstraction, the concept reduces to three key dimensions: first, diplomacy is a process (of claiming authority and jurisdiction); second, it is relational (it operates at the interface between one's polity and that of others); and third, it is political (involving both representation and governing).Footnote 7
Other scholars highlight how diplomacy concerns the representation of an entityFootnote 8 and the structuring and ‘conduct of relationships’.Footnote 9 Diplomacy thus entails the claiming of authority, representation of an entity, and is relational (or involves interfacing with external actors).
While diplomacy traditionally concerns inter-state relations and the representation of the state, it ‘today takes place among multiple sites of authority, power, and influence’.Footnote 10 Consequently, scholars now speak of ‘paradiplomacy’, or the diplomatic activity of substate or regional entities,Footnote 11 NGO diplomacy,Footnote 12 diplomacy of international organisations,Footnote 13 and diplomacy of supranational parliaments.Footnote 14 Diplomacy has also been used to describe practices of the ICCFootnote 15 and the Court of Justice of the European Union (CJEU).Footnote 16
Diplomacy entails a range of practices or activities, ‘from negotiation, communication, consular, representation, and reporting to observation, merchandise trade and services promotion, cultural exchange, and public relations’.Footnote 17 This is important because diplomacy often brings to mind images of negotiations and face-to-face dialogue between top state officials, yet it often entails modes of communication, representation and promotion, public relations, and more.Footnote 18
Building on this understanding of diplomacy, I define judicial diplomacy as a set of practices that are planned and organised by an international court,Footnote 19 whereby it represents itself and claims authority through non-adjudicative interfacing with external actors.Footnote 20 Its central features are fourfold. First, judicial diplomacy is the result of a decision taken by the court itself (not an individual judge). It is planned and organised by the court and conducted on its behalf. Even though individual judges and administrators are the face of judicial diplomacy, it is intended to represent the court (not the judges’ own persons). It is not an individual judge deciding by herself to appear at a conference, interact with lawyers, the press, etc.
Second, judicial diplomacy reflects a court's effort to interface and build relationships with external actors. These external actors can be diverse and include public and private actors (for example, civil society) as well as legal actors (lawyers, legal academics, law students, law societies, etc.) and non-legal actors. Third, judicial diplomacy is pluralistic: it encompasses a variety of practices and activities ranging from dialogue with government officials, representation at international meetings, to public communication. Fourth, it is separate from the process of adjudication or legal interpretation. For example, ICs sometimes conduct fact-finding missions when reviewing a dispute. While these transpire outside the courtroom, they are not diplomacy because they are directly part of adjudication.
To summarise, judicial diplomacy captures many, but not all, activities that courts conduct off-the-bench. When part of adjudication, when organised and conducted on behalf of individual judges or when not relational, these activities do not meet the criteria of judicial diplomacy.
Judicial diplomacy is widespread. Several international criminal tribunals demonstrate judicial diplomacy. The International Criminal Tribunal for the former Yugoslavia (ICTY) began a programme in 1999 to communicate information about the Court and its work to affected populations.Footnote 21 It established an outreach unit, which began
organizing visits to the ICTY for students, political advisors, officials and military officers; media work; distributing Tribunal publications; delivering presentations at roundtables, conferences and seminars on the Tribunal's work and specific cases; creating a ‘Voice of the Victims’ section on the Tribunal's new website; providing training for judges, prosecutors and journalists; and engaging with youth organizations such as the Youth Initiative in Belgrade.Footnote 22
Similar efforts have been adopted by the ICC, the Special Court for Sierra Leone, and International Criminal Tribunal for Rwanda.Footnote 23 Similarly, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) employ judicial diplomacy through non-judicial activities. The ECtHR's 2016 ‘Bringing the Convention Home’ programme might be described as judicial diplomacy. This programme included trainings for legal professionals and outreach, such as the production of films about the Court for public consumption.Footnote 24 The CJEU, for example, held an annual Meeting with Judges and on other occasions met with presidents or vice presidents of national judiciaries in 2016.Footnote 25 In the same year, the CJEU gave presentations to 675 groups and welcomed legal trainees to the Court.Footnote 26 It also conducts official visits and exchanges with state officials and communicates with citizens via traditional and social media.Footnote 27
Scholars have previously noted the non-judicial activities of international and domestic courts. Yet, in leveraging the concept of diplomacy to frame these activities, we can approach them as strategic political behaviours that support a court's adjudicative functions. Viewed as diplomacy, these activities are the result of purposive decisions taken by a court to target particular audiences with certain content, all of which raises important questions. Namely, why do ICs decide to employ judicial diplomacy? Who are the target audiences and what is its primary content?
Explaining judicial diplomacy
Leading perspectives on international law and courts offers two accounts for how and why ICs exercise judicial diplomacy. The first suggests that ICs employ judicial diplomacy to mobilise compliance constituencies, while the second suggests that judicial diplomacy is used to socialise actors to adopt legal norms. In this section, I describe these accounts and identify their observable implications.
By one account, ICs conduct judicial diplomacy to mobilise compliance constituencies. This logic stems from the rationalist perspective that states comply with international law when compliance aligns with their rational interest.Footnote 28 Pro-compliance constituencies are often essential to compliance due to their capacity to incentivise states to comply. Compliance constituencies, such as the private sector, civil society, and substate actors can facilitate compliance by holding politicians accountable for international obligations through litigation, lobbying, and voting.Footnote 29 For example, the CJEU mobilised compliance constituencies by creating opportunities for individual litigants, lawyers, and lower courts to use the Court and EU law, which contributes to the Court's successes.Footnote 30
Previous research largely assumes that ICs mobilise compliance constituencies through adjudication, by developing legal doctrines and jurisprudence that empowers the private sector, civil society, and substate actors.Footnote 31 However, judicial diplomacy is another possible means by which international courts can mobilise compliance constituencies. For example, the CJEU courted national judges ‘through seminars, dinners, regular invitations to Luxembourg, and visits around the community’.Footnote 32
When judicial diplomacy is used to mobilise compliance constituencies, we would expect it to have a combination of two characteristics, one related to its target audiences and the other to its primary content. First, judicial diplomacy will target potential compliance constituencies, like substate (for example, lower courts) and non-state actors (for example, lawyers, the private sector, civil society), especially when these actors have direct access to the court. While these are the general expectations, the targets of judicial diplomacy will be tailor-made for each IC depending on who has the capacity to serve as a compliance constituency. For example, if national courts can make referrals to an IC, we would expect national judges to be among the target audiences. Second, while targeting compliance constituencies, judicial diplomacy will deliver mostly informational content, detailing how potential compliance constituencies can utilise the IC or how the law advances their interests. In other words, judicial diplomacy will disseminate information about the procedural aspects of the law (for example, how to access the court) and the substantive provisions (for example, legal doctrines, jurisprudence) that are relevant to compliance constituencies.
Norm entrepreneurship and socialisation
A second account maintains that ICs use judicial diplomacy to socialise actors to adopt legal norms. This account builds on constructivism and rests on the logic that international law depends on processes of socialisation, whereby beliefs about appropriateness diffuse through ‘norm entrepreneurship’. Socialisation leads actors to internalise and accept norms, or standards of appropriate behaviour, as they are persuaded of the norms’ validity.Footnote 33 Actors may alternatively adopt pro-norm behaviour because of social awards or punishments.Footnote 34
Like NGOs and advocacy groups, IOs can be ‘teachers of norms’,Footnote 35 or ‘act as agents of socialization by pressuring targeted actors to adopt new policies and laws’.Footnote 36 For instance, IOs socialise actors through the use of shaming.Footnote 37 ICs are also able to socialise, and they are well suited to be agents of socialisation for a few reasons. First, legal processes facilitate norm socialisation.Footnote 38 Second, ICs have moral and expert authority,Footnote 39 which improves their persuasiveness. Third, international judges and IC staff are often highly committed to the legal norms of their courts.
While courts socialise others primarily through adjudication and their decisions (for example, making validity claims in legal argumentation), they can also use non-judicial activities.Footnote 40 Non-judicial channels could be especially useful for these purposes because ICs can encourage adherence proactively. Otherwise, ICs are primarily restricted to socialising actors after norms are violated. Thus, judicial diplomacy can reflect an IC's efforts to promote norms.
If judicial diplomacy were used to socialise actors, we would expect public officials to be a crucial target, as they hold the power to bring law and policy into conformity with norms.Footnote 41 Also, the process of socialisation ‘is not necessarily or entirely in the realm of reason, though facts and information may be marshaled to support claims. Affect, empathy, and principled or moral beliefs may also be deeply involved.’Footnote 42 For this reason, we would expect the content of judicial diplomacy to express validity claims and persuasive arguments about the substantive provisions of law while targeting public officials. For example, it may entail shaming of non-conforming state behaviour or praising of their norm conformity.
Judicial diplomacy as legitimation
Mobilisation of compliance constituencies and norm socialisation suggest judicial diplomacy will target public officials, substate, and non-state actors and communicate information and persuasive arguments about the procedure and substance of the law. Nonetheless, these explanations are ill-equipped to explain why, for instance, judicial diplomacy is often oriented toward the public and embedded with value-laden narratives about the courts themselves. Why do courts aim to communicate with the mass public while proclaiming their respect for procedural rules, fairness and impartiality, or community values and their mandates? The following discussion elaborates on my account, which suggests that legitimacy provides the key to understanding these aspects of judicial diplomacy.
Legitimacy refers to the ‘beliefs within a given constituency or other relevant audience that a political institution's exercise of authority is appropriate’.Footnote 43 It is a subjective and intersubjective quality of an institution, not an objective quality about the moral justifiability of an institution or its ‘right to rule’ – even though an actor's beliefs about an institution may be informed by its objective quality.Footnote 44
The impact of legitimacy on behaviour is different from the logic of appropriateness. Most important, the logic of appropriateness assumes that actors adhere to the precepts of a norm for content-dependent reasons. One conforms to a norm because it espouses a value or prescription that he or she believes is appropriate. Legitimacy implies that adherence to a rule or norm follows from the appropriateness of the institution that produces it, not from the content of the norm. Stated differently, legitimacy generates moral, content-independent reasons to adhere to any one norm or rule.Footnote 45
Legitimacy is crucial for international institutions, including courts. It is a source of power that facilitates compliance, acting as both a normative motivation and rational constraint on the behaviour of states.Footnote 46 Legitimacy is especially important for ICs, which lack coercive capacity. While national courts are backed by the coercive power of the state, ICs do not benefit from the same coercive support. States are rarely willing to back an IC to coerce one another to comply. At the same time, states’ rational self-interests cannot fully account for (non)compliance with ICs. States may defy an IC, despite being in their interests to comply, and states sometimes comply even though there are few interests to do so. These instances highlight how legitimacy provides powerFootnote 47 and ‘compliance pull’,Footnote 48 and why some scholars define legitimacy as beliefs that an institution ‘ought to be obeyed’.Footnote 49
Legitimacy is also important because it can influence an institution's performance, such as its usage and relevance for problem solving.Footnote 50 States and individuals are unlikely to turn to a court for redress if it is not viewed as an appropriate authority. Moreover, institutions that exercise significant authority but lack legitimacy can become highly politicised,Footnote 51 leading to resistance and contestation and threats of exit, voice, or creation of alternative institutions.Footnote 52
Institutional legitimacy is variable and ‘sensitive to existing social and material conditions, which are constantly evolving’.Footnote 53 In other words, an institution that was once legitimate may no longer be legitimate. Pressures, like a declining relevance to current problems, rising authority, a growing density of international organisations, or increasing demands from civil society, can produce legitimacy losses.Footnote 54 Moreover, the normative yardsticks against which legitimacy beliefs are held can shift with time.Footnote 55
All of these dynamics motivate international institutions to behave instrumentally and develop strategies and institute policies to boost their legitimacy.Footnote 56 These strategies – whereby actors deliberately seek to generate and promote, among relevant audiences, beliefs in the rightfulness of a political institution – are referred to as legitimation.Footnote 57 Legitimation highlights institutions’ processes and/or outcomes.Footnote 58 It occurs through various modes, including public communication,Footnote 59 procedural reforms or changes to institutional design, among others.Footnote 60 For example, the UNSC's legitimation strategies included several reforms, ranging from increased reliance on external experts to changes to its committee structure.Footnote 61 The creation of international parliamentary assemblies has also been described as a strategy of legitimation.Footnote 62 Finally, an institution can direct its legitimation toward external audiences or internal audiences (e.g., personnel).Footnote 63
ICs will be prone to develop strategies of legitimation because they ‘cannot rely upon the “presumption of legitimacy” associated with national institutions’.Footnote 64 Also, as their authority and importance to global governance has expanded,Footnote 65 many are confronting significant politicisation, contestation, resistance, and ‘backlash’.Footnote 66 The ICC provides an illustrative example: states have threatened and proceeded to withdraw their membership, the AU has begun the process of creating a court with competing jurisdiction, and the US has threatened the ICC's prosecutor for investigating atrocities.Footnote 67 Additionally, many ICs are relatively new,Footnote 68 and therefore do not have historical legacies to provide a reservoir of support. In circumstances such as these, ICs may act instrumentally and turn to judicial diplomacy to boost their legitimacy.
As a means of legitimation, judicial diplomacy has distinct characteristics. We would expect its target audiences to cover a broad spectrum of stakeholders to generate ‘diffuse support’.Footnote 69 In particular, a distinct target audience of judicial diplomacy for legitimation purposes is the public. Recent scholarship on IO legitimation points to evidence of broad efforts to shape public views.Footnote 70 Matthias Ecker-Erhardt finds the ICC, the Council of Europe, and the Organization of American States have the highest degree of public communication (which he argues is associated with legitimation).Footnote 71 It is probably no coincidence then that these IOs have among the most salient ICs (the ICC's judicial chambers, ECtHR and Inter-American Court of Human Rights, respectively) at their core. Also, we know that domestic courts rely on public support.Footnote 72
The same is likely to be the case for ICs, even though there is no direct electoral connection between them and the public. Drawing on the understanding that international processes interact with domestic politics,Footnote 73 we can see how public support matters to ICs. First, public support has bearing on state compliance with international judicial decisions.Footnote 74 If an international court is viewed favourably by domestic constituencies, state policymakers may find it political costly to defy that court.Footnote 75 Conversely, when an IC enjoys minimal public support, states have few domestic incentives to comply. Second, favourable public opinion can insulate an IC from political attack.Footnote 76 Third, diffuse support may affect judicial decision-making.Footnote 77 Fourth, recent research suggests that the public is increasingly searching out information on international courts,Footnote 78 and outreach by courts can affect the public's opinion of an IC.Footnote 79 Fifth, international judges want the esteem of the public, believing it is instrumental to their work. As one international judge described, courts’ ‘need to establish their relevance, their integrity, and their effectiveness. To do so, they need to be seen and heard, not just by the legal and diplomatic communities, but also by a broad cross-section of the citizenry.’Footnote 80 Given the significance of the public to ICs, we would expect judicial diplomacy to target the public if it were concerned with legitimation.
Legitimation suggests that judicial diplomacy will not only target the public but also interested stakeholders. These stakeholders include public and non-state actors, as well as legal and non-legal audiences.Footnote 81 Stakeholders’ views, however, are likely to differ. A court may be held in higher esteem with legal professionals than with state officials, for instance. In addition to the public, legitimation will therefore target stakeholders where deficits in support exist.
We would expect the content of judicial diplomacy to go beyond the substantive and procedural provisions of law. Rather, it will portray the ‘rightfulness’ of the court itself, highlighting value-laden messages about its processes and outcomes. The portrayal of its processes and outcomes will typically be ‘norm-referential’.Footnote 82 In terms of processes, Klaus Dingwerth and his colleagues find that, while variable, the norms referenced often relate to adherence to rules and correct procedure.Footnote 83 Similarly, the fairness of procedures can affect an IOs legitimacy.Footnote 84 For an IC, this will translate into messages about adherence to rules and correct procedures, procedural fairness, or impartial and independent adjudication. Judicial diplomacy, for example, will convey the court's respect for the rules of admissibility and the confines of its jurisdiction. Legitimation will also present narratives about outcomes, or ‘claim legitimacy on substantive grounds, because they promote values and pursue goals shared by the international community’.Footnote 85 Along these lines, Dingwerth et al. find that legitimation increasingly focuses on the people or communities represented by the institution.Footnote 86 To this end, an IC might emphasise its commitment to and fulfilment of its founding principles or mandate and its promotion of community values. Thus, we would expect strategic legitimation to reveal itself in judicial diplomacy that features norm-referential narratives about the court's processes and outcomes and that targets the public and stakeholders where deficits exist.
The previous discussion elaborates on three accounts of judicial diplomacy and theorises the observable implications for each account (summarised in Table 1). Each account has distinct expectations about the combination of targets and content of judicial diplomacy. These observable implications guide the empirical analysis.
Before proceeding, a few caveats are worth mentioning. First, the theoretical accounts that I have identified need not be competing explanations for how and why ICs conduct judicial diplomacy. ICs can have more than one motivation for conducting diplomacy. Nevertheless, the prominence of one over the other(s) may vary over time or by courts. Second, these explanations are not necessarily exhaustive, although I do expect these to be the most prominent and generalisable motivations. All ICs have concerns for compliance, socialisation, and legitimacy. This is not the case with other plausible motivations, such as the need to elicit monetary support from donors. For example, the CCJ is financially secure, while the ACtHPR relies on donors. In addition, these logics are well grounded in previous theoretical perspectives relevant to international law, courts, and organisations.
I use qualitative case studies on the African Court of Human and Peoples’ Rights and the Caribbean Court of Justice to empirically assess the theoretical explanations outlined in the previous section. The selection of these two cases is advantageous for several reasons. First, as relatively new courts, they need to develop compliance constituencies and socialise states to adopt norms. In terms of research design, this selection of cases holds constant these two logics, while probing for the plausibility of legitimation. Also, the infancy of both courts provides insights into how newness shapes legitimation. Second, the courts differ in several aspects of their design, which helps to understand the generalisability of the findings. The CCJ and ACtHPR have different ratione materiae (subject matter) jurisdiction: the CCJ deals with regional integration law while the ACtHPR has jurisdiction over international human rights law. They have different rules on access and admissibility (described later) and funding arrangements.Footnote 87 The processes for selecting judges and the terms of appointments differ.Footnote 88 Also, they are dissimilar in terms of competing jurisdictions.Footnote 89 Third, there is limited research on the ACtHPR and CCJ, allowing this study to shed light on two previously understudied courts.
The case studies rely on qualitative content analysis of four types of data. First, I examine all published annual reports of each court (spanning their lifetime) to identify judicial diplomacy. A focus on annual reports helps to restrict the inclusion of non-judicial activities to only those that are centrally organised. The reports do not typically document the activities that individual judges pursue for personal reasons. Second, I use speeches and presentations made by representatives of the courts. Only speeches and presentations published on the courts’ websitesFootnote 90 or social media pages are included, assuming if a court has posted them, it sanctioned these activities and views them as a representation of the court. Third, I rely on each court's press releases, also on the assumption that the activities mentioned in press releases are conducted on behalf of the court. Fourth, I use interviews conducted with judges, registrars and other personnel of the court, as well as regional lawyers.Footnote 91 I exclude all activities that are directly related to adjudication. The case studies are constructed by triangulating these data.
Judicial diplomacy and the African Court of Human and Peoples Rights
The AU established the ACtHPR in 1998 by adoption of the Protocol to the African Charter on Human and People's Rights on the Establishment of the African Court on Human and Peoples’ Rights (herein African Court Protocol). To date, thirty states have ratified the African Court Protocol and are therefore subject to the Court's jurisdiction. The ACtHPR became operational in 2006, received its first application in 2008, and issued its first decision in 2009. The ACtHPR interprets and applies the African Charter on Human and Peoples’ Rights (herein African Charter), the African Court Protocol, and any other human rights instruments ratified by the concerned states.Footnote 92 Individuals and NGOs with observer status to the African Commission on Human and Peoples’ Rights (ACmHPR) can petition the Court against states that have made a declaration accepting private access, according to Article 34(6).Footnote 93 The ACmHPR, African intergovernmental organisations, and member states can also refer cases to the Court.Footnote 94
Targets of judicial diplomacy
Judicial diplomacy is a regular part of the ACtHPR's activities. The Court demonstrates concerted efforts to reach several audiences in its judicial diplomacy. One of the ACtHPR's most prominent, repeat exercises of judicial diplomacy are ‘sensitisation’ visits. Every year since 2010, the ACtHPR has sent a delegation (usually including the Registrar and at least one judge) to visit member states.Footnote 95 Typically, these visits include a meeting with top government officials, such as presidents or prime ministers, attorney generals, or ministers of justice as well as legislative or parliamentary leaders and judges of the national apex court. Sometimes the delegation holds meetings with officials from national human rights institutions, such as an ombudsman or human rights commissioner. According to the Court, the objectives of these meetings include ‘encouraging the ratification and the deposit of the Declaration under Article 34(6) of the Protocol of the Court that allows individuals and NGOs direct access to the Court’.Footnote 96 The sensitisation visits also engage with civil society, especially human rights groups, and the legal community. For example, on several occasions a member of the ACtHPR has delivered a lecture at a law school as part of these visits. Also, the Court hosts a half-day or full-day seminar with civil society. The stated objectives of these activities include: ‘sensitizing would-be applicants on how to access the Court and the procedures before the Court’.Footnote 97
Apart from the sensitisation visits, the ACtHPR has organised numerous conferences. For example, in 2013, the Court hosted a Continental Consultative and Sensitization Seminar on the Promotion of the Court for Women Human Rights NGOs in Africa.Footnote 98 Also in 2013, the Court hosted a Continental Seminar on Judicial Dialogue with National Judiciaries. This seminar ‘was attended by a total of 74 participants’, including ten national and international judges, representatives from regional institutions (for example, AU), legal associations, and academics.Footnote 99 This conference is now held on a biennial basis. Another example of a conference organised by the Court was the International Symposium celebrating the 10th Anniversary of the Court.Footnote 100 Representatives of the Court also attend and participate in academic, advocacy, and practitioners’ conferences. All of these activities are ways in which the Court interacts with public officials, national courts, lawyers, and civil society organisations.Footnote 101
While many of the exercises of judicial diplomacy target actors who are potential compliance constituencies and relevant to socialisation, the ACtHPR also recognises that low acceptance by these audiences is problematic. By its own assessment, the Court identified ‘the low level of ratification of the Protocol’ and the ‘slow rate of deposit of the declaration allowing individuals and NGOs direct access to the Court’ among its key challenges.Footnote 102 Approximately half of the AU's member states have not ratified the African Court Protocol to accept the Court's jurisdiction, despite having all ratified the African Charter. Only ten states have accepted individuals’ and NGOs’ access to the Court.Footnote 103
The Court also targets the public through its judicial diplomacy, which is uniquely expected by a logic of legitimation. The Court has identified a lack of public awareness and acceptance as a challenge.Footnote 104 When developing the Court's 2016–2020 Strategic Plan, the then president of the Court claimed: ‘We have to intensify our efforts to increase the visibility of the Court so that more people and stakeholders understand the existence of the Court and hope that in return they will presurize [sic] their States to ratify and or deposit declarations.’Footnote 105 The strategic plan went on to identify the lack of public awareness as a ‘threat’ to the Court and to adopt ‘outreach and coordination’ as one of four main goals, with an objective of ‘build[ing] the Court's reputation and profile as a veritable pillar in the African Human Rights architecture and improve awareness of the Court by engaging stakeholders’.Footnote 106 On an earlier occasion, Judge Akuffo noted: ‘there is an overall lack of awareness about the very existence of the Court among Africans across the board, let alone adequate knowledge about who may access the Court, how they may do so and the nature of applications that might be brought before the Court’.Footnote 107 Interviewees expressed similar concerns with the ACtHPR's public image. For example, one interviewee explained: ‘we are sensitive to the public's perception about the Court, especially the image of the Court’.Footnote 108
The Court also demonstrates that it recognises its own ability to shape its public image. As one interviewee stated: ‘The Court must take care of its own public relations. And so … we've come along to accept that.’Footnote 109 More recently, the current President of the Court, Sylvain Oré, impressed upon the Court's need to address its public image, urging the Court to work on its publicity to counter existing negative impressions made by states and sentiments of public opinion.Footnote 110
To address the Court's image with the public, the ACtHPR decided to employ non-judicial activities. Judge Akuffo explained in a speech how the Court has sought to remedy poor public acceptance, stating: ‘the Court has taken the unusual policy decision to strategically improve its visibility and accessibility to all relevant stakeholders by undertaking activities that inform them of its existence, its mandate and how it may be utilized’.Footnote 111 ‘Sensitisation’ visits are one such activity. Among the objectives stated for sensitisation are ‘raising public awareness about the Court … [and] encouraging the public to utilise the Court in settling human rights disputes’.Footnote 112 The Court also relies on media and technology to ‘reach out to those people who are not here [in Arusha]’.Footnote 113 The Court has provided media training on how to cover the Court. In 2013, for instance, the Court organised a conference for the media. It ‘was attended by a total of 67 journalists and media practitioners from thirty (30) African countries and 10 Judges of the African Court. At the end of the two-day conference, the participants adopted conclusions on how to work to enhance the visibility of the Court in particular and promote human rights as a whole.’Footnote 114 Also, the Court distributes promotional materials (for example, posters, pamphlets, videos, etc.),Footnote 115 and it maintains a website and social media profiles (for example, Twitter, Facebook) to have a public presence.
Content of judicial diplomacy
The judicial diplomacy of the Court, as mentioned above, includes information about its procedural and substantive law. For example, the Court's jurisprudence and procedures were presented during the moot court competition,Footnote 116 by Judge Râfaa's presentation during a sensitisation visit,Footnote 117 and its YouTube video presentations.Footnote 118 The Court's website also publicises its procedures and case law. Less prominent to such informational content is praising or shaming of states for their respect of human rights.
The judicial diplomacy of the ACtHPR typically couples informational content with norm-referential narratives about its processes and outcomes. For example, the Court's website states that one of its core values is ‘fair and impartial application and interpretation’ of human rights law.Footnote 119 The Court conveys or displays these values while practicing judicial diplomacy.Footnote 120 Former president of the Court Justice Niyungeko explained: ‘the Court pledges to discharge its role as the judicial pillar of the African Union with independence, justice and fairness’.Footnote 121 The Court makes other norm-referential statements pertaining to its processes, like how its adherence to rules of admissibility and the exhaustion of local remedies. For example, during the moot court competition, the Court emphasised its respect for these rules.Footnote 122
Similarly, the ACtHPR communicates narratives concerning its outcomes, including its respect for its mandate. One interviewee explained:
One of the key points I make when I talk with some ambassadors and some senior officials is ‘No, don't look at the Court as an institution that is trying to condemn what you do, just look at it as an institution trying to bring you in line with the Charter which you have voluntarily signed.’ So when we try to tell them like that, there is some understanding. We also try to tell them that we are not replacing your appellate courts. We are not interfering with their sovereignty, we are only there to help your appellate court do what it should do.Footnote 123
As this judge explained, the message to states is that the Court works with them to realise human rights. Court representatives related a similar narrative regarding the Court's respect for state sovereignty at the 2015 moot court competition.Footnote 124
The Court's judicial diplomacy signals its commitment to its founding purpose: the protection of human rights and effective justice for these rights. At the Third Continental Judicial Dialogue, President Oré explained: ‘to render a more effective justice in Africa is no longer an option. It is imperative!’Footnote 125 The Court reveals this commitment to human rights through its promotion of other human rights institutions. When addressing audiences where the Court does not have jurisdiction, one interviewee explained that efforts are made to point to other institutional opportunities for the protection of human rights, such as the ACmHPR or the court of ECOWAS.Footnote 126 The Court also highlights its complementarity with the ACmHPR.Footnote 127 The prominence of parallel human rights institutions in the Court's judicial diplomacy signals its broad commitment to human rights and its overall political purpose.
The Court also refers to its promotion of African values and goals. In another statement, Oré expressed how human rights reflect a common African goal: ‘it is our struggle, our common responsibility for an Africa which places human rights at the heart of the African Union reforms and as the key to socio-economic and human development’.Footnote 128 On another occasion, Oré asserted how the Court is ‘neither a Court for the States nor a Court of the Judges, but rather a Court for all African citizens’.Footnote 129 He claimed that ‘to build a more worthy, more humane and more prosperous Africa’ is a ‘common struggle’.Footnote 130
To summarise, the ACtHPR's judicial diplomacy targets public officials as well as substate and non-state actors, which can be associated with the mobilisation of compliance constituencies and socialisation. The ACtHPR's judicial diplomacy provides information about the law when addressing these audiences, as would be expected of efforts to mobilise compliance constituencies. Less prominent are validity claims about the law, such as shaming and praising of norm (un)acceptance, to socialise public officials. It also targets the public to a significant degree, alongside audiences where the Court has noted deficits of support. When addressing these audiences, the Court's judicial diplomacy is embedded with narratives about its processes and outcomes, including its adherence to proper rules, its commitment to its mandate and its promotion of common African values and goals. Stated differently, the ACtHPR's judicial diplomacy takes a public-oriented and people-centred approach.
Judicial diplomacy and the Caribbean Court of Justice
The CCJ became operational in 2005 and was established by member states of the Caribbean Community (CARICOM) in 2001 upon the adoption of the Agreement Establishing the Caribbean Court of Justice (CCJ Agreement). CARICOM is a regional integration organisation of 15 Caribbean states, most of which are former British colonies. The CCJ has dual jurisdiction: appellate and original. In states that have accepted the appellate jurisdiction, the CCJ replaces the UK's Judicial Committee of the Privy Council as the national court of last resort.Footnote 131 The CCJ's original jurisdiction involves the interpretation and application of CARICOM law, such as the organisation's founding treaties – the Treaty of Chaguaramas (1973) and the 2001 Revised Treaty of Chaguaramas (RTC). The Court's original jurisdiction is available to individuals or entities. Member states can file cases against other member states and organs of CARICOM, and national courts may refer questions of community law to the CCJ.
Targets of judicial diplomacy
Since its beginning, the CCJ has conducted judicial diplomacy, targeting a variety of actors. The CCJ reaches out to public officials. The President of the CCJ pays ‘courtesy calls’ to government officials. For example, in 2015–16, the Court's president visited with government officials in Antigua, Guyana, St Lucia, and St Vincent and the Grenadines.Footnote 132 The CCJ views these courtesy calls as ‘essential to ensure the continued awareness of the challenges facing regional judiciaries and include giving guidance on possible solutions’.Footnote 133 CCJ judges are frequently at events, representing the Court, with members of governments.Footnote 134
The CCJ's judicial diplomacy also targets civil society and legal professionals through seminars, conferences, and training workshops. For example, the CCJ hosted, in partnership with the Guyanese judiciary, a judicial training workshop.Footnote 135 A large part of the Court's judicial diplomacy that targets legal professionals is conducted under the auspices of Court's ‘educational arm’. This includes an entity established and managed by the Court called the CCJ Academy for Law, previously known as the Caribbean Academy for Law and Court Administration. The CCJ Academy aims to provide ‘informative and innovative perspectives on the rules and the roles of law’ and ‘a platform for examining court administration and encouraging best practices in the judicial administration of justice’.Footnote 136 It organises seminars, workshops, exchanges, special lectures, and a biennial conference.Footnote 137 For law students, the Court runs an annual international law moot court. The CCJ hosted its 11th moot court competition in 2019.Footnote 138 Additionally, the Court's judges attend and speak at a wide range of events throughout the region and beyond. Between 2005 and 2019, the Court recorded 145 such presentations. Among others, judges gave speeches to law schools, bar associations, and professional associations for judges.
While the CCJ's judicial diplomacy targets actors who are relevant for mobilising compliance constituencies and socialisation, a significant portion of it focuses on the public – where a highly relevant deficit of support exists. Among the CCJ's key challenges is accession to the Court's appellate jurisdiction. As Justice Byron explained, this is ‘the most compelling matter for the Court’.Footnote 139 States’ acceptance of the appellate jurisdiction requires constitutional reforms in member states through popular referendum. The reluctance across the region to accept the CCJ's appellate jurisdiction is perhaps attributable to poor knowledge about the CCJFootnote 140 and societal perceptions that the Court lacks independence, Footnote 141 among other things. Moreover, the Court's flow of cases in its original jurisdiction is ‘sluggish’.Footnote 142 The original jurisdiction relies largely on stakeholders petitioning the Court.
The CCJ recognises there are significant gaps in public support. In fact, one of the overarching themes of the Court's current strategic plan is public ‘trust and confidence’.Footnote 143 Similarly, ‘attaining and preserving public trust and confidence’ was a theme of the Court's previous strategic plans.Footnote 144 Several interviewees expressed concern for the CCJ's public image and pointed to initiatives the CCJ has taken to address its public reputation. The CCJ's registry has a unit dedicated to ‘public education’. At its beginning, the CCJ initiated ‘a public outreach programme, through which it interfaces directly with the Caribbean public, either by inviting groups into the Court for contact sessions, or by taking its message “on the road” as it were, into the very heart of constituent communities’.Footnote 145 Taking the message ‘on the road’, in part, means literally taking the Court on the road. On occasion the CCJ sits in locations other than at its headquarters in Trinidad. For example, it held sittings in Belize in 2015, Guyana in 2014, Jamaica in 2013, and Barbados in 2012, among others.Footnote 146 More recently, the CCJ sat in St Vincent and the Grenadines. President Justice Saunders explained that this sitting was ‘an opportunity for the people of St. Vincent and the Grenadines to see and meet with the judges of the CCJ’.Footnote 147
The CCJ has hosted public education events, including one in Belize in 2008 and Grenada in 2011.Footnote 148 The events in Grenada included ‘town hall meetings, in which CCJ officials went into the communities to interface with the people and provide them with information about the Court. The contingent also made media appearances on radio and television stations throughout Grenada, and hosted a media conferences.’Footnote 149 More recently, the CCJ participated in consultations in Antigua prior to a national referendum on the CCJ's appellate jurisdiction.Footnote 150
Further illustration of how judicial diplomacy targets the public is a series called ‘Did You Know?’. This series provided easy to know information on the role, functions, and work of the CCJ, which was disseminated as newspaper advertisements in all CARICOM states and one-minute television advertisements throughout the region.Footnote 151 The Court communicates to a broader public through social media and its website where it streams hearings. As this description shows, in line with the expectations for legitimation, the CCJ's judicial diplomacy targets the public and audiences where deficits in support occur.
Content of judicial diplomacy
The CCJ's judicial diplomacy disseminates information about the substantive and procedural provisions of Caribbean law. For instance, Justice Byron explained that the CCJ's moot competition encourages ‘aspiring attorneys to become familiar with the Revised Treaty of Chaguaramas and other areas of international law … it serves as a medium through which law students in the Caribbean can be exposed to integral principles of the Treaty and the regional integration movement’.Footnote 152 The CCJ's moot court is a unique opportunity for students to engage with the law of CARICOM.Footnote 153 An examination of the speeches delivered by CCJ's judges reveals that they convey information about the procedural and substantive content of the law. Moreover, the Court's annual reports and press releases provide summaries of its jurisprudence and the Court's website hosts all of its judgments. However, the Court's judicial diplomacy does not tend to make validity claims about the substantive law.
The CCJ's judicial diplomacy couples information on the procedural and substantive law with narratives about the Court. It asserts its respect for proper procedures and fair and impartial adjudication. As President Saunders stated: ‘The people of the region can truly be proud of this court, of its independence and the integrity of its court processes.’Footnote 154
The CCJ's judicial diplomacy highlights outcome related narratives, such as its commitment to its mandate. For example, prior to the Grenadian referendum on the CCJ's appellate jurisdiction in 2014, the Court's released a statement, saying said: ‘the Court assures the people of the Caribbean Community in general and people of Grenada in particular that it remains committed to the discharge of the mandate given it in its constituent treaties … [and] to play a determinative role in the further development of Caribbean jurisprudence through the judicial process’.Footnote 155 Similarly, at the special sitting in St Vincent and the Grenadines, President Saunders proclaimed: ‘The CCJ has no desire to be involved in the political decision making of any country.’Footnote 156
A large amount of the CCJ's judicial diplomacy portrays the Court's commitment to justice and the rule of law. For example, Justice Hayton in a public speech stated: ‘We judges have devoted our lives … to developing the law so that citizens can have fulfilling lives in a democratic society where the rule of law prevails.’Footnote 157 As the Court states, ‘the CCJ remains an advocate for and provides support to improvements within the region's judicial systems’.Footnote 158 Specifically, the CCJ's judicial diplomacy focuses on educating and assisting judiciaries throughout the region to improve the rule of law. For example, the CCJ Academy is intended for this purpose. Similarly, with the Canadian government, the CCJ has a project on improving the justice sector in the region.Footnote 159
The CCJ's judicial diplomacy does not focus only on CARICOM law, but justice and the rule of law generally. One interviewee explained, the CCJ is ‘helping the member states improve their administration of justice capacity in the individual countries. And to that extent is also serving to imprint into the consciousness of the public of the Caribbean the legitimacy of the Court.’Footnote 160 These efforts signal the CCJ's commitment to its political purpose, including the protection of the rule of law within the region.
Through its judicial diplomacy, the CCJ also communicates its respect for community values. For instance, President Saunders told stakeholders: ‘The CCJ is my court, your court, the region's court.’Footnote 161 Other judges present the CCJ as a reflection of the Caribbean people and its values. When speaking to law students at the 2018 moot court competition, then President Byron stated:
Culminated in the existence of this Court, your Court, are the aspirations of Caribbean peoples. And it is a hope that the Caribbean Court of Justice by its existences epitomises. The CCJ is currently poised to contribute to positive change in the social order of our Caribbean societies by delivering justice which is accessible, efficient and reflective of our values and mores.Footnote 162
The CCJ portrays itself as a reflection of the Caribbean, using ‘Your People. Your Region. Your Court’ as a motto on its website. The sentiment of this motto is woven throughout representations of the Court made in various arenas. For example, while presenting to a regional bar association, Justice Anderson argued: ‘The Caribbean Court of Justice plays an important symbolic role to us as Caribbean people because, in its appellate jurisdiction, it represents the culmination of our journey towards independence, the severance of our ties from our former colonial masters, and a conscious decision to chart our own jurisprudential course.’Footnote 163 Similarly, then President Byron told an audience at the University of West Indies
the CCJ affords the opportunity, by its judgments, more closely to align the trajectory of Caribbean jurisprudence with the mores, values, goals, needs, and aspirations of Caribbean people; that although the CCJ will not create a Caribbean jurisprudence, it will certainly be better positioned to bring that jurisprudence closer to the people of the Caribbean since the final appellate court will now comprise Caribbean nationals and judges who reside in the Caribbean.Footnote 164
In sum, much like the ACtHPR, the CCJ's judicial diplomacy targets public officials and substate and non-state actors, which we would expect for mobilising compliance constituencies and socialisation. When targeting these actors, the content of the CCJ's judicial diplomacy does include legal information, and to a lesser extent persuasive arguments about the law. A significant portion of its judicial diplomacy, however, targets the public, which tends to include norm-referential narratives about the Court's processes and outcomes.
This analysis explored how and why ICs use judicial diplomacy and reveals three main findings. First, the ACtHPR and CCJ's judicial diplomacy is public-oriented, which is uniquely expected of legitimation. These courts express concern for their public image and have instrumentally developed strategies to address the public's views. Both courts also orient their judicial diplomacy toward interested stakeholders, such as public officials, legal professionals and civil society, especially where the courts believe they have legitimacy deficits with these audiences. For example, the ACtHPR's diplomacy is oriented toward public officials in order to encourage more states to ratify its protocol, while the CCJ focuses on gaining widespread accept of its appellate jurisdiction.
Second, the ACtHPR's and CCJ's judicial diplomacy, especially when targeting the public and audiences where support deficits exist, communicates norm-referential narratives about the courts themselves. Their messaging underscores how their processes conform to key values. They frequently signal their adherence to rules and respect for fair, impartial, and independent adjudication. In addition, their judicial diplomacy addresses outcomes, such as commitment to their political purpose and mandate, and highlights how they are people-centred. The ACtHPR's rhetoric emphasises its commitment to human rights, while the CCJ affirms its commitment to the rule of law and regional integration. Both courts refer to how they represent the communities they serve and reflect common goals or struggles of their respective people.
Third, I observe information sharing that is directed toward compliance constituencies. Both the ACtHPR and CCJ target actors who can facilitate compliance, especially national judges, lawyers and NGOs, and they disseminate information on how to access the courts and their jurisprudence. This confirms that judicial diplomacy can be employed to mobilise compliance constituencies. Information sharing is, however, consistently coupled with public-oriented and people-centred narratives observed in the ACtHPR's and CCJ's judicial diplomacy. I find less evidence of persuasive argumentation about the law that is intended for public officials. These findings suggest that a full account of judicial diplomacy requires recognition of the role that legitimation plays and its complementarities with the mobilisation of compliance constituencies.
Do these findings relate to the broader universe of ICs and what are the scope conditions of judicial diplomacy for legitimation purposes? The analysis indicates plausible conditions to the argument. As the normative yardsticks of legitimacy have evolved, the public-oriented and people-centred characteristics of judicial diplomacy is probably a more recent phenomenon and less relevant historically. In other words, the target audiences and primary content will most likely vary according to the normative yardsticks for legitimacy of the day. This may explain why we observe older courts, like the CJEU and ECtHR, only recently developing public-oriented and people-centred judicial diplomacy. Future research could bring greater clarity to whether judicial diplomacy has evolved over time.
As for generalisability, this analysis suggests that legitimation is crucial to understanding the judicial diplomacy of a wide array of ICs, irrespective of institutional design. As the two cases show, judicial diplomacy for legitimation purposes applies to ICs with distinct institutional designs. The ACtHPR is a human rights court while the CCJ is a regional integration court. The two courts also differ in regard to the selection of judges and the terms of their appointment, funding, access, admissibility rules, and competing jurisdictions. The ACtHPR's and CCJ's judicial diplomacy reflect legitimation as a key motivation, despite these significant differences. These cases however leave open the question of whether ICs with only state-to-state disputes will feature public-oriented and people-centred diplomacy (however, today this comprises a small minority of ICs). While the cases analysed here do help to clarify the scope and generalisability of the argument, future research is necessary to determine the full range of factors that inform judicial diplomacy as legitimation and its complementarities with the mobilisation of compliance constituencies.
This article has implications for research on ICs. It argues that when viewed as diplomacy, ICs’ non-judicial activities take on broader meaning. Defined as the processes by which international courts represent and claim their authority in their interfacing with external actors, judicial diplomacy casts non-judicial activities as strategically planned political behaviours. These behaviours are not merely coincidental to the existence and operating of ICs. Rather, as these behaviours reflect strategic efforts to boost legitimacy, they are part and parcel to understanding the performance and authority of international courts.Footnote 165
This article also has implications for literature on the legitimation of international institutions. It suggests that legitimation extends to international courts, which previously received little attention by this literature, and it complements previous findings that today's international institutions rely on public-oriented, people-centred legitimation.Footnote 166 However, in contrast to this literature, the findings here show that legitimation strategies can develop in the infancy of an institution, and need not be tied to specific crises or political pressures. In other words, legitimation may be linked to the process of institutional establishment and development. Moreover, it suggests future research could bring further light to the synergies between legitimation and diplomacy.
I would like to thank Daniel Naurin, Olof Larsson, Michal Parízek, David Kosar, Julian Dederke, Arthur Dyevre, Mathias Koenig-Archibugi, McKenzie Ratner, and participants at the LSE Department of IR's workshop on International Institutions, Law and Ethics for comments on earlier versions of this article. I also thank the anonymous reviewers for their thoughtful suggestions. This research was made possible by funding from the Research Council of Norway through its Centres of Excellence Funding Scheme for a project entitled ‘PluriCourts: The Legitimacy of the International Judiciary’ (Project No. 223274).