Why States Create International Tribunals: A Response to Professors Posner and Yoo

59 Pages Posted: 22 Feb 2005  

Laurence R. Helfer

Duke University School of Law; iCourts: Center of Excellence for International Courts

Anne-Marie Slaughter

Princeton University - Woodrow Wilson School of Public and International Affairs

Abstract

A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the interests of other states to influence their judgments.

In this response, we identify the many shortcomings in the theory, methodology, and empirics in Judicial Independence in International Tribunals. We do so to challenge the authors' core conjecture: that formally dependent international tribunals are correlated with effective judicial outcomes. We then offer our own counter-theory; a theory of constrained independence in which states establish independent international tribunals to enhance the credibility of their commitments and then use more fine grained structural, political, and discursive mechanisms to limit the potential for judicial excesses.

Keywords: International Law and Trade, Dispute Resolution

Suggested Citation

Helfer, Laurence R. and Slaughter, Anne-Marie, Why States Create International Tribunals: A Response to Professors Posner and Yoo. California Law Review, Vol. 93, p. 899, 2005; Princeton Law and Public Affairs Working Paper No. 05-005; Vanderbilt Public Law Research Paper No. 05-01; Vanderbilt Law and Economics Research Paper No. 05-10. Available at SSRN: https://ssrn.com/abstract=670821

Laurence R. Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

iCourts: Center of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts/news/laurence-r-helfer/

Anne-Marie Slaughter

Princeton University - Woodrow Wilson School of Public and International Affairs ( email )

Princeton University
Princeton, NJ 08544-1021
United States
609-258-4800 (Phone)

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