A Theory of International Adjudication

72 Pages Posted: 1 Mar 2004  

Eric A. Posner

University of Chicago - Law School

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute

Date Written: February 2004

Abstract

Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels set up under GATT, are "dependent" in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter-American Court of Human Rights, and the new International Criminal Court, are "independent" in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than dependent tribunals are. We argue that the evidence does not support this view. We also argue that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. However, selection effects and other methodological problems render a firm conclusion impossible. We support our argument through an examination of qualitative and quantitative evidence, and we argue that the European Court of Justice is not a good model for international tribunals because it owes its success to the high level of political and economic unification among European states. We conclude with pessimistic predictions about the International Criminal Court, the International Tribunal for the Law of the Sea, and the WTO dispute resolution mechanism, the newest international tribunals.

Keywords: international adjudication, international arbritration, international law, dispute resolution

Suggested Citation

Posner, Eric A. and Yoo, John, A Theory of International Adjudication (February 2004). U Chicago Law & Economics, Olin Working Paper No. 206; UC Berkeley Public Law Research Paper No. 146. Available at SSRN: https://ssrn.com/abstract=507003 or http://dx.doi.org/10.2139/ssrn.507003

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

John Choon Yoo

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

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