Game theory and the legitimacy of international adjudicative bodies

Abstract

Traditional legal approaches assume that a court is legitimate when its decisions are faithful to the text that expresses the mandate for which it was created (the Constitution, in the case of domestic courts; and the treaty, in the case of international courts). However, studies employing game theory, especially the Hawk-Dove game, show that judges of international courts cannot always be faithful to this mandate and provide the single right legal answer to the cases brought before them for it would risk the stability of the whole system. In light of these findings, the objective of this paper is to sketch the foundations of a new theory of legitimacy that justifies the authority of international adjudicative bodies and provides a framework to assess their activity. The paper hypothesizes that the role of international courts is not (and cannot be) solely to provide the unique right legal answer on a case-to-case basis in an approach that focuses on individual rights. Instead, their role is to advance and sustain a “legitimate state of affairs” that is in line with the normative goals that motivated the creation of the international organization. Employing an analytical methodological approach, the authors take as a starting point game theory models and findings by Dyevre and Loth, and use the theory of the “objective dimension of fundamental rights” advanced by Robert Alexy and the theory of the “unconstitutional state of affairs” advanced by the Colombian Constitutional Court in order to rebuild a coherent theory of the legitimacy of international adjudicative bodies.