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Dana Burchardt, "The Authority of International Courts: A Behavioural Framework" (Hart Publishing, 2026)
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- [00:01]
Dr. Miranda Melcher
Welcome to the New Books Network. Hello, and welcome to another episode on the New Books Network. I'm one of your hosts, Dr. Miranda Melcher, and I'm very pleased today to be speaking with Dr. Donna Bouchard about a book she's just published with heart Publishing in 2026 titled the Authority of International Courts, A Behavioral Framework, which takes as kind of the big picture puzzle to investigate why in this world where we have now a number of international courts, they're not really all equal. Some of them are seen as kind of having quite a lot of authority and need to be listened to. Others are seen as trying to have authority but actually get a lot of pushback. And others exist on paper but don't seem to get a lot of attention kind of at all. And yet, in sort of purely legal terms, there's a lot of similarities between them, and yet the reactions that they get, the sort of perceptions that they have, are clearly not equal. So this book helps us understand what exactly is going on. So I think we're going to have an interesting conversation. Donna, thank you so much for joining me on the podcast.
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Dr. Donna Bouchard
Yeah, thank you so much for having me.
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Dr. Miranda Melcher
Could you start us off, please, by introducing yourself a little bit and tell us why you decided to write this book and maybe more on the kinds of questions you wanted to ask.
- [01:19]
Dr. Donna Bouchard
Yeah, of course. So I'm a legal scholar and I work at the moment at the Berlin Social Science center, that's an interdisciplinary research institute here in Berlin. And one of my key research interests, so to say, are international courts. And you've already sort of pointed to, so to say, one of the backgrounds of why I've decided to write this book, because I was, so to say, interested in these differences among different international courts that for some of them have similar design features, look similar from the legal perspective, but do fare very differently in practice. So why is this the case we have? For example, just to give you a couple of examples of comparisons that are discussed in the literature, and various regional human rights courts, such as the European Court of Human Rights and the African Court of Human and People's Rights, on the other hand, and both seem similar in design, but do fare very differently then in relation to regional integration courts. We have the CJU in the EU context and the ending Court of Justice as a regional court in South Africa, America, which is, for example, compared as to how they fare in terms of the engagement with domestic courts via preliminary references. Or we have also sub regional courts in Africa, something that I'm very interested in as well. Also in this book here, for example, the court of the Ecowas community, so the Economic Community of West African States, a court that fares quite well as compared to some other regional or sub regional courts, for example, the tribunal of the Southern African Development Community that has so to say, not survived its first pushback by member states. So why do we see these various differences? And as I already mentioned in the literature, various authors, both from legal scholarship, but also from political science, have engaged with these questions, have looked into the. The questions of the authority of international courts, of the effectiveness of international courts, of the legitimacy of international courts, and try to explain these developments and these findings. And here what intrigued me when I looked at this literature was that there are seemingly opposing findings in this literature. So some seem to find that, for example, more the legal and institutional factors matter and seem to be determined determining whether a court fares well or not, while others find that political or even socio economic factors might matter more. So I was intrigued by these different findings and my book addresses this and kind of then asks the question, what are in fact the factors that determine whether actors accept the authority of an international court? And can we somehow reconcile these findings that exist existed in the previous literature?
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Dr. Miranda Melcher
Okay, that's very helpful for sort of situating the questions you're examining and how it fits into sort of what we already know. One thing though, I think we probably also want to introduce is the key term of authority, which has sort of come up a few times already. So can we clarify what you mean by that and why you're examining it through behavioral research?
- [05:00]
Dr. Donna Bouchard
Yes, of course, that's an important question to start with. So there are of course many different ways to approach the notion, notion of authority. The way I do it in this book is first by using a relational understanding of authority. So that means it's really about the authority relationship between an international court and its various audiences. So it's not understanding authority as an attribute of the court only, but really two prong relationships, so to say, the court on the one hand and its various groups of relevant actors on the other hand. That means this is really then why I asked the question in this way. So when do actors accept the authority of international courts? So it's from this perspective of the actors that the engagement with authority of international courts happens. So that's the first important point on my authority concept here. The second one is that it is dynamic in nature. So authority relationships and understood as something that is static and cannot change over time. No, of course it can change over time. And my book also explicitly addresses this temporal dimension. So it traces the change of authority relationships for the courts that I've chosen as examples over time and shows how these relationships have developed. And then the third aspect that is relevant with regard to this authority notion that I use in the book is that I understand it as. Or that I understand authority as composed both by an element of attitude of the relevant actor and of an element of behavior. So, for example, we have an actor's belief that one ought to align with an international court's decision. So that's the attitude. But we also then have, in addition to that, the corresponding behavior. So, for example, the implementation of. Of this decision. So it's the combination of attitude and behavior that really, for me, defines authority. And here we already see, so to say, how the behavioral perspective then comes in because it takes this behavioral element, the behavioral dimension of authority seriously, such as I. So it focuses on that. On that, not entirely, not exclusively, but it takes it seriously. And by doing so, what it does is it allows you to bridge the gap between these various findings that I mentioned before in the legal and political science scholarship, the different findings on when and under what conditions, such as strong authority relationships, develop. So the behavioral, or including a behavioral research dimension into the legal and the political science assessment of international court authority provides here, so to say, a missing piece to explain how authority relationships come about with regard to international courts.
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Dr. Miranda Melcher
Okay, that's very helpful as a foundation to the rest of our discussion. And as you mentioned, you do look at some courts in particular to kind of examine these dynamics in more depth. But you do that using a framework to kind of make sense of what we're finding. So can you introduce us to your framework first?
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Dr. Donna Bouchard
Yes. So the framework that I use, I call this the MOC framework. And the MOC stands for motivation, Opportunity and constraints. So that's a framework that is inspired by behavioral research. It's a framework that helps us to assess the factors, as I said, that influence whether or not international courts develop strong or less strong authority relationships with their respective audiences. And it allows us to understand, or to understand, so to say, the functioning of various elements that are discussed in the literature on international courts and in relation to their authority, and so to say, to see whether they are motivational effects, whether they create an opportunity structure in which behavior can take place or cannot take place as much, so to say, and whether there are any factors that, despite motivation and opportunity are being there, they might still constrain the targeted behavior. So in our case, the acceptance of the authority. So what the framework does is, as I said, use these motivational factors, opportunity factors and constraining factors to really assess authority relationships. And secondly, it allows us to understand the interplay between these three factors, not just individually these factors, but how these factors are related to each other. So just a few examples as to what motivational opportunity and constraining factors might be. So motivational factors can relate both to values and to interests. So with regard to values in the context of international courts, that could be, for example, and shared value between the court and a respective group of actors as to rule of law, as to human rights protection, as to judicial independence as well. And interest can be very diverse as well. So there's of course the straightforward interest in resolving specific legal disputes, but the interest that can motivate actors to accept the authority of a court go much beyond that. So there are many more interest. There can be strategic political interest. There can also be interests such as initiating social change or just flagging certain legal violations or violations of law, or just a deterrence effect. So there are very many other interests that can motivate actors as well. And then with regard to opportunity, again, a number of factors of motivation we saw that lies very much within the actors, the relevant actors, what might motivate them specifically. But opportunity elements, they lie outside of the control of the relevant actors. This can be, for example, questions as to the jurisdiction of the court, the access rules, who and under what conditions can access can bring cases to the court, then rules and also the practice of the courts as to the scope of review that they undertake or the remedies that they issue. So all of this has very legal factors. So we see opportunities are very legally influenced element of the MOC framework. But we also have some non legal dimension here. So for example, the behavior of other actors within a certain group of actors, such as, for example, among the domestic courts or among NGOs or among the governance of member states in relation to certain behaviors, this can also be a factor. So for example, if members or if only few of the group of member state governments have accepted an optional declaration as to the jurisdiction of a court, or for example, the possibility for individuals to bring cases to a court, then this is, so to say, a less favorable opportunity element, as if most member states would have done that, because then the pull the conformity pool amongst the members of this group would be stronger to also adopt this behavior as compared when there's only few other actors within the group who have done so as compared. Yeah, or even no actors. Right. So and then the last element is the constraints in the MOC most C in the MOC framework. So this again can be factors that lie more within the relevant actors or intrinsic constraints, but also extrinsic constraints. Intrinsic constraints, for example, can relate to the knowledge of actors as to the court itself, that it exists at all, or what are the procedures, the rules to engage with the court and so on. So knowledge related constraints can limit why actors might engage more or less with an international court. Then there can be, for example, financial constraints that can also limit both applicants, but also respondent actors when it comes to implementing the decisions, for example. And there can also be extrinsic factors such as pressure by some actors not to exercise, not to recognize the authority of an international court. So for example, there have been instances in which governmental actors have put pressure on their respective domestic courts not to engage with an international court, not to follow its jurisprudence, not, yeah, not to say respect the decisions of this international court. So that would be an example of such pressure by other actors on the respective group of actors that want to or that would be able in principle and also willing to engage with an international courts, but are constrained from doing so.
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Dr. Miranda Melcher
Okay, that's helpful to understand the framework and some examples there. Is there anything else we need to discuss about how to use this framework to analyze international courts?
- [14:50]
Dr. Donna Bouchard
Yes, I guess a couple of things can be added here. First of all, it's important, I think, to highlight that with this framework, one can assess both the factors for acceptance of authority and also the factors for pushback against an international court. And maybe at the first glance, it might seem that the factors for acceptance are just a negative or the other way around, that the factors for pushback are just a negative of the factors for acceptance. But that really is not the case. There is some overlap, but there are some specific factors according to the MRC framework for pushback. So, for example, when it comes to the opportunity for pushback in the form of treaty amendments, then of course the legal framework for such treaty amendments creates this opportunity structure and this is not represented in any way in the opportunity structure for acceptance. Right. So it's a very specific element for pushback. And similarly, for example, with regard to constraints here, one of the main constraining factor for pushback is supporting actors. So other actors that would Support the court, e.g. nGOs or other member states or even scholars of the general public, and these supporting actors as an element of constraint on pushback are also not reflected in the factors for acceptance. So we need to really assess acceptance and pushback Individually, so to say, when it comes to the MOC analysis, knowing of course that they are interlinked but that they are not identical assessments. So that's the first point. Then the second point is I've already said so this framework allows us to understand for basically each international court how its relationship towards its respective audiences, its authority relationship looks like. That means we have to assess or to really understand these authority relationships really have to look at the individual groups of actors. So for example, an international court and its relationship towards individual applicants, or its relationship towards NGOs, its relationship towards member step, member state governments, towards domestic courts. So all these different groups might have different or their MOC setting might differ. And in the book I also show for the courts that I look at that they do differ in substance and also develop differently over time. Then another point that I have hinted at before but not explained yet, is that this framework allows us not only to understand what element might be a motivational element or an opportunity element, or a constraining element, but it really also helps us to understand the relationship amongst these factors and what is the determining factor for each group. So are all these elements equally important or do we have one element that is the most important, so to say, the one that really determines whether an actor accepts the authority of an international court or not. And here the MSC framework really provides really crucial insights because it kind of allows us to understand that really we have what is going on, so to say, in this relationship between these MRC factors is that there is a sort of bottleneck effect that can happen. So that means that the least favorable factor determines the outcome in the strongest manner. So that means, for example, if a group of factors has a high motivation to accept the authority of an international court, it will not do so. This motivation will not materialize, so to say, into actual behavior. If they don't have any opportunity to accept the authority of an international court, or even if they have the opportunity that then there is no ability to do so because there are so high constraining factors, right? So, for example, if you have an individual group of individual applicants who want to bring cases to an international court, so motivation would be there. They cannot do so if there is, for example, no possibility, no legal possibility for individual applications, if there is no jurisdiction or no access for such individual applications, so that's straightforward, then the opportunity element is the determining factor because the one that is the least favorable in this regard, then it doesn't matter that there's high motivation or that there are low constraints. Motivation would be the determining factor sector. Right. And one can tweak this into the various other ways in which this can play out. So, for example, if there is motivation and there's also opportunity, but there are high constraints, again, that would not. The individual applicants could not bring cases to the court, for example, if the financial constraints hurdles, so to say, to bring cases to an international court is too high, even if they have motivation to do so, and even if there would be an opportunity to do so legally, this will not happen. So they won't bring cases to the court. So that shows us really that we have to really understand which of the factors, the MOC factors, which one is really the one that is the least favorable. And this factor then will be the determining factor. So this is a very crucial thing for analyzing international courts also because this influences then these strategies. Of course, I think about the strategy. We'll talk in a moment. But this will just to foreshadow a little bit, obviously for international courts, it's then important to understand which is a determining factor for each group. Two further points I want to say, so to say here at this stage, first is that this framework also allows us, and I hinted at this before, to trace change over time for international courts. So the change within the authority relationship, and not only the change over time for one international courts, but it also allows us to compare authority relationship developments amongst different international courts. So a comparison among different national courts is something that's really a useful way of using this MOC framework as well, because then this helps us to explain why similarly designed courts might fare differently. So that's the initial question, as I said in the beginning, that has been discussed a lot in the scholarship. So this comparative element is very important as well.
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Dr. Miranda Melcher
Okay. So we've got a lot of things to unpack and discuss kind of what this means in practice. I think think perhaps the place I'd like to go first is that point you made earlier that the reasons why a court's authority might be more accepted are not necessarily the inverse of why they wouldn't be. So what does this look like in practice? What are some actual examples from a real court where stakeholders might be more willing to accept the authority?
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New Books Network Host
Yeah.
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Dr. Donna Bouchard
So in the book I develop, of course, the overall framework as such in a general manner. And I also also assess two courts as an example of how this MRC analysis can look like. And I do this for the ECOWAS courts or the court of the ECOWAS community. And I do this for the ECtHR. And let me just give you to say, two examples from these two courts. So with regard to the ECOWAS court, that's a court with a dual jurisdiction, both for human rights matters and for regional integration matters. So here, right now, I want to talk about the human rights dimension and the individual applicants and as a group, so to say, of actors with which the ecosystem engages and their authority relationship between this group of actors and the ecosystem. Here, what we can see really nicely is a development and also a change in this determining factor that I just mentioned before. Before. Right. So we have initially a situation where there was virtually no opportunity for individual actors, so individual applicants to bring cases to the ecosystem court. It was legally not possible before a protocol that amended this possibility or created this possibility 20 years ago. And here we see initially a situation where despite there being motivation for actors to bring cases to the court and they even tried before this protocol came into being unsuccessfully, though, there was the opportunity. So the lacking opportunity was the determining factor in this MOC framework. And then later on, as I said, this opportunity was created, and it was even a very broad opportunity that was created. So with broad access for individuals, broad human rights jurisdictions, there's also no
- [24:53]
Dr. Miranda Melcher
rule,
- [24:54]
Dr. Donna Bouchard
as in many other regional and international courts, that actors or that applicants need to exhaust domestic remedies before they can bring cases to the ECOS court. So this is not a requirement. So that broadens the possibility of these actors the opportunity to bring cases in to the court. Also, the court has accepted that public interest litigation is possible, so really a very broad opportunity. But now this broad opportunity has not translated into a very strong use, so to say, by these individual applicants of the courts. There is an increase over time, and the court does receive more and more cases, but it's not as broad as one would expect if one only looks at the opportunity element. And why is that? That is because the motivation to do so is only moderate for this group of actors, and there are still relatively high constraints for these actors as well. So there is motivation, for example, with regard to the independence of the ECOWAS code, which is important especially for actors who live in member states, which do not have a very high level of independence of domestic courts. There is also other factors, such as, as I said, flagging out human rights violations. It's very strong motivational factor for some applicants. Also, some political actors have brought cases to the ECOWAS courts, for example, in election matters and so on. So there is motivation there, but it's only moderate because the effectiveness interests, which I say the interest of really bringing a case there, and that being effectively resolved is not as high as it could be because there are some compliance issues with regard to the ECOWAS court. Right. So motivation therefore is only moderate and there's still relatively high constraining or constraints in the ECOWAS context for individual applicants specifically. So that might be different, for example for corporate applicants or for NGOs as applicants, but for individual applicants especially the knowledge related constraints and also the financial constraints are still pretty high. So here we see that despite the broad opportunity, motivation and constraint, and specifically the constraints that are relatively high are here the determining factor. So we see both the functioning of, so to say the bottleneck effect in this example, and we also see the change over time. So initially the opportunity was a determining factor and now it's rather the constraints that are the determining factor. So that's the first example. The second example comes from the sphere, so to say of the ECtHR. And here I want to talk a little bit about the executive actors as respondents. So the respondents perspective on the court. Again here we see quite a significant change over time also in terms of what is the determining factor. So we see that initially we had a relatively limited opportunity for these executive actors as respondents to engage with the Court, for example, because the court had a very restrictive approach to remedies. And with limited remedies, obviously there's only limited way for executive actors to really implement what the Court demands. There has also been a lacking or a lack of an internal effect of the Convention, and that reflects then on the ability of domestic actors to engage with court decisions as well. So this has changed at the Latest in the 1990s, early 2000s, where virtually all Member states have accepted the internal. So the domestic effect of the Convention that you can rely on as domestic in the domestic legal setting as well on the Convention and therefore also on the decisions of the Court. So here we see that this opportunity was the genomic factor in the initial years. It increased until the 90s where all MOC factors, all three factors were very favorable. So this is something that's interesting as well globally, because the 90s, so to say, understand often as a heydays of human rights protection. And this is really reflected here as well in this development. And then however, since the 2000s we see a decrease again in some of the factors. So this doesn't only have to be, as we can see with the ECtHR, such as a positive development, but we can also see a decrease, and that is not with regard to the opportunity elements. They remain stable and high as they were in the 90s but mostly in relation to the motivational and constraining factors and especially with regard to the motivational factors. We can also see the link to say to the pushback motivation against the ECtHR in relation to the ECtHR. So what has or with the relevant developments? There are many relevant, relevant developments that increase the motivation, that decrease the motivation for acceptance and increase the motivation for pushback. Just a few examples. We have had a develop or less favorable development in terms of rule of law and human rights practice in several Member States. So that has decreased. We have seen, of course, a higher number of decisions before the Court which leads to a higher impact of these decisions. And the higher impact is not just because of the numbers, but also in terms of the remedies that the Court has issued. They are more impactful and therefore it's more demanding for Member States to implement them. Really follow them. Then there have been quite a number of very controversial and also high politics, so to say, issues that have been decided before the Court just in, just lately we've had, again, I mean it's been ongoing for a while, but just in the last year we've had a recent pushback against the ECtHR on migration matters. So migration is a very controversial issue before the Court is something that influences the motivation here as well. So here we just see, so to say how the development can take place and then it can have sort of say a little bit of a wave movement can increase at some stage, it can decrease again. So it's something that is not set in stone and that can develop in all directions.
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Dr. Miranda Melcher
So to say that's helpful to have those examples. And I think it also leads us nicely onto something else. I wanted to pick up from what you mentioned earlier, which is why it's important for the courts to kind of know about these different factors because they can do some things themselves. Right, to enhance acceptance.
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Dr. Donna Bouchard
Exactly, yeah. So this is something that I very much try to focus on and highlight in the book as well, this perspective of court. So what can they actually do to influence their authority relationships with their respective audiences? And there, I think are two important, so to say, takeaways, points to make. The first one is that courts can influence all three MRC factors. So it seems most plausible, if one looks at that, to start with, that they can influence the opportunity elements because they are the most legal, right? So the opportunity dimension is the most legally structured dimension of the MSC factors. So they can, for example, interpret access rules broadly and make it then easier for applicants to brain cases to the court. But opportunity is not the only factor that they can influence. They can also influence constraints and motivation. So for example, with regard to constraints, when it comes to constraints that are knowledge related, we've seen many different strategies of courts outreach activities, for example, providing information about the court and jurisprudence on their website sites, also creating networks with other international courts, with domestic courts, with bar associations. So really engaging as as many, as many actors as possible to enhance knowledge through this engagement. That would then increase the constraints relating to knowledge. That really is a very determining factor for not just for individual applicants, but for many other applicants, but also to some extent respondent actors. And then they can also influence motivational factors. Here, just one example is, or an interesting example that we see in several courts in the last few years, is a tendency to create their own monitoring mechanisms and frameworks. So where courts themselves would monitor the implementation of their decisions, for example, by demanding that respondents would submit a report after a certain time limit, how they have implemented their decisions or the decisions of the court. And something like this, or a strategy like this does two things. For example, it enhances the motivation for compliance for the respondents, but it also increases the motivation of applicants to bring cases to the court because it becomes then more effective to actually do so. So the aspect of disbursion becomes more effective for applicants. Right. So this would be an instrument that or strategy that would target both respondent actors and applicants at the the same time. So we can see that there are, so this is just one example each, so to say for how courts can influence the MOC factors. But it's really, there's a broad variety of strategies that we can see in practice on this. So that's the first takeaway. The courts have agency and they can influence all three factors. And of course, you know, there's always limits to that, but they do have some agencies at least. And then the second important point, and I hinted to that before as well, is that for these strategies to be effective, courts really need to target the determining factor for each group. They need to be aware for each group of actors, which is the determining factor, so which is the factor that is least favorable, and then try to enhance that one. So, for example, if opportunity is already broad, but there's high constraints as to lacking knowledge, for example, then really it doesn't help much if the court tries to broaden opportunity more by interpreting access rules more broadly or by broadening their interpretation of its own jurisdiction. Right. So this is something that courts need to take into account, that they need to be aware of that they really need to assess what is missing in the authority relationships with each relevant group of actors and how they can effectively address the missing element and enhance, to say the least, favorable MOC element.
- [37:06]
Dr. Miranda Melcher
And what can courts do about pushback if there's kind of, oh, there's some gaps to enhance acceptance? What about if there's already pushback? Can the courts do anything to reduce it?
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Dr. Donna Bouchard
Yes, again here we see in practice that courts both try to manage pushback. So when there's a pushback that is already ongoing, they try to limit, so to say, the impact that this pushback attempt might have. And they also, before even pushback occurs, try to reduce the likeness of this. They avoid pushback and they manage pushback. And here again they can target motivational factors, opportunity relation related factors and constraining factors. With regard to pushback, we see in practice that courts tend to focus on motivational factors. For example, when we look at the ECtHR, we see that there has been initially this reluctance to have far reaching remedies, the key member states or not to set them off, so to say, to start with, when the Court was still developing. We see the notion of the margin of appreciations very prominent of course as an element of deference of the ECtHR towards member states. We've seen over many decades an incremental approach that the Court takes with various developments in its jurisprudence. And that also relates to or that has a very distinct behavioral dimension as well because it makes use of what is called foot in the door technique. So that's, that's a technique that makes use of the behavioral effect that when one demands a small thing from an actor and this actor agrees to the small demand, it's more likely that they will also agree to then a bigger demand afterwards. Right. So this incremental approach, starting with a smaller demand and increasing this over time is something that the ECtHR and other courts as well have used as strategies to avoid pushback to start with. Right. So that is an avoidance technique rather than a managing technique. Whilst for example, margin of appreciation can be both. We see also the adaptation of this tool in the response of the ECtHR in relation to certain instances of pushback. More leeway that is given for example to more critical, or at least to, to some more critical member states in some instances as compared to less critical member states. So an adaptation of this tool to also manage ongoing pushback. There are many more other strategies that the ECTR and other courts have adopted with regard to motivation as well. I just want to mention a couple of more things that courts can do to decrease the opportunity for pushback and to increase the constraints against pushback. So with regard to opportunity elements, there's an interesting example from another regional court or sub regional court in Africa that I'm interested in as well, the East African Court of Justice. This Court has established a jurisprudence or certain conditions for treaty amendments by Member States, for example, regarding participation of stakeholders, public, public participation, so to say, and, and transparency of, of these treaty amendments, which also aim at reducing the chances of some rushed and so to say, clandestine, unfavorable treaty amendments that are used by Member States as a pushback against the Court. So here we see how a court can, via these legal means, also influence at least some forms of pushback in this manner. And then very importantly in the pushback context, are constraining elements I already mentioned before, I think, are the, the supporting actors. And here we see how courts have tried to really forge these alliances with various group of supporting actors. In the ECOWAS context, we have seen this from the very beginning that the Court has tried to have really strong alliances with NGOs as supporting actors. And they did in fact help, and, you know, did help to, to reduce pushback attempts by Member States in the past. So this has proven to be a very effective way also to shape the MSC framework with the Guard to push back. So courts can do a lot, of course, they cannot do everything and there's limits to what they can do, but they do have a lot of possibilities to really influence the MRC framework with regard to pushback as well.
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Dr. Miranda Melcher
Thinking about that last example and how it was so effective, can you tell us more about what made the work between the NGOs and the court so successful? Like what did they actually do and why did it work?
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Dr. Donna Bouchard
Yeah, so there's this specific example and then there are, you know, general aspects of effectiveness of. First, on this specific example, I would say in the context of the ECOWAS court, one of the strengths here was that the NGOs were from the very beginning, very closely involved in the development and the construction of the Ecowest Court as well. So from the very beginning, they had a high involvement and high motivation with regards to this court. And the court itself has fostered this, for example, by having a very
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Dr. Miranda Melcher
open
- [43:27]
Dr. Donna Bouchard
stance to NGOs, both as applicants before the court, but also with regard to amicus curia briefs. So it really allows a lot of engagement of NGOs with the court to, so to say, keep them involved and keep them interested in the court. So this is a strategy that is very different as compared to, for example, the ECtHR, which has classically been very reluctant when it comes to engagement of NGOs. It hasn't been very NGO friendly at all. So just very recently it has started to open up a little bit more. So we see very stark differences here in these approaches. And we have seen, however, with regard to the ecowas, that really this is something that has been very crucial, especially in situations when, so to say, the court cannot rely on other member states to constrain some critical actors, so to say, some member states that wish to push back. So this is the strategy that the ECtHR has focused on. You know, the fact that we have different or that there's a quite a variety of course of interest amongst the member states. It's the same in ecobas context. But here the ECTHR has benefited from this. We always have had member states that constrained then the very critical group of member states that try to push back against the ECT and try to reduce its impact. And this is of course a different approach of a CORE to focus on that. But of course it is to some extent more risky. Right. Because this can change over time. And with regard to the surgery that the echo of US core takes, it's less risky and more likely that this NGO involvement and the interest of NGOs and the support by NGOs and of course other actors as well might remain stable over time. Right. So one would think that, or it has been, or let's say in the ecovas context at least, this has been a very effective and very. Yeah, an effective strategy that really also makes sense. And maybe it could be something that also other courts could focus on in the future. But this was the specific example. I just want to say a couple of words on effectiveness in general. So as I said before, so one of the really important points for these strategies is that they really need to know how favorable are each of these MOC factors. Right. And then to target the right factor with regard to both pushback factors, but also acceptance factor. So understanding what is the determining factor is crucial. So that's the one point. And the other point that is really crucial when it comes to also the interrelationship, so to say, between the factors for pushback and for acceptance is that there can be what I call in the book, interactor effects that can be challenging for courts to design the strategy. So, for example, if there is a strategy that increases motivation or opportunity for some group of actors to accept the authority of an international courts, that same strategy might increase the motivation of other actors to push back against the court. So in the ECOWAS context, again, we have the exe popular possibility. So public interest litigation, that is something that has also been broadened by the court in its jurisprudence and that broadens then the opportunity for applicants to bring cases to the court. So that's to say broadening or increasing the favorability of the MOC setting for applicants. But at the same time, this same strategy can lead then to increasing the motivation by member state governments to push back against the court, or at least against that specific jurisprudence on public interest litigation. So something that is favorable for one actor, so in relation, that would increase or strengthen the authority relationship with one group of factors might decrease the favorability of the authority relationship with another group of actors. So here it is important for courts to keep the impact of their strategies on all actors in mind and to see whether there can be these opposing effects. Right. That something that increases the acceptance on the one hand might make pushpick on the other hand by some actors more likely.
- [48:42]
Dr. Miranda Melcher
That's definitely worth keeping in mind. And of course, you've mentioned some other key takeaways throughout our conversation, but are there any other things you're hoping readers take from the book that we want to discuss now as we come to the end of our talk about the book?
- [48:55]
New Books Network Host
Yeah.
- [48:55]
Dr. Donna Bouchard
So I mean, as you said, I've already pointed to some of the key benefits of this MRC framework. So it helps us to understand when courts are have strong authority relationships and when they don't. And yeah. What are the reasons for why this is. And it helps courts to develop effective strategies. I just pointed to that. That's really also a tool not only for academics, but really also for our practitioners, especially for courts to understand how they can be effective in managing their authority relationships. And then from an academic perspective, this approach helps us to really solve this conundrum of the findings that existed as to the factors that determine authority relationships. It brings these findings together and shows that they are not competing, but they really make sense at the same time, because we need to see for each authority relationship which of the factors is the least favorable, and this one will then be the determinative one. But I think one of the further points that I want to highlight is that for future research, this framework can be used in two ways. The first is that it can be used, of course, to analyze other international courts beyond the ones that that I have looked at as examples in my book that I just published. And it can also be used as a really insightful comparative tool for international courts, but also with regard to other judicial bodies, both in the international transnational and domestic realm as well.
- [50:53]
Dr. Miranda Melcher
Well, speaking then of further research, what are you working on now that the book is done?
- [50:58]
Dr. Donna Bouchard
Yeah, so I continue to work on international courts on the one hand. So as I mentioned, the recent pushback against the ECTHR is something that is of course very interesting and I keep engaging with this. I also look at questions relating to the challenges that also the benefits that might come from digitalization and AI in relation to international court courts. In addition to this, I also have currently another bigger project that is called Interacting Legal Spaces. So that looks into the different dimensions of the interrelationship between legal spaces and particularly on the questions of the rule of law in these interrelations.
- [51:45]
Dr. Miranda Melcher
Well, certainly plenty there to investigate. So best of luck with the project and thank you for for telling us about this book. Anyone who wants to learn more can of course go read it titled the Authority of International A Behavioral Framework, published by hart Publishing in 2026. Donna, thank you so much for joining me on the podcast.
- [52:03]
Dr. Donna Bouchard
Yeah, thank you so much. It was a pleasure.
- [52:05]
New Books Network Host
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