International Judicial Independence

41 Pages Posted: 1 Oct 2011  

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS)

Date Written: September 30, 2011

Abstract

This chapter provides an overview of what we know about international judicial independence. First, what is international judicial independence? Judicial independence refers to the set of institutional and other factors that to a lesser or greater extents allow judges autonomy from the preferences of other political actors when they issue legal opinions. How judges will use this autonomy is a separate question. Second, why do some international courts have a great deal of independence while others do not? Viable theories of judicial independence should not be based on assumptions that judges are ontologically inclined to favor greater separation from states whereas states have opposite inclinations. Instead, I emphasize the answers offered by two groups of theories: rationalist institutionalist (or principal-agent) and sociological-institutionalist (or neofunctionalist) approaches. Third, what do we know about the degree to which governments can use control mechanisms to influence judges? Here I discuss the various challenges to empirically studying judicial independence. Finally, does judicial independence increase the effectiveness of international courts? This latter section highlights fears that the judicialization of politics is met by an increased politicization of the judiciary.

Keywords: judicial independence, international courts, judicial behavior

JEL Classification: N40

Suggested Citation

Voeten, Erik, International Judicial Independence (September 30, 2011). Available at SSRN: https://ssrn.com/abstract=1936132 or http://dx.doi.org/10.2139/ssrn.1936132

Erik Voeten (Contact Author)

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS) ( email )

Washington, DC 20057
United States

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