Why States Create International Tribunals: A Response to Professors Posner and Yoo
Laurence R. Helfer
Duke University School of Law; iCourts: Center of Excellence for International Courts
Princeton University - Woodrow Wilson School of Public and International Affairs
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
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.
Number of Pages in PDF File: 59
Keywords: International Law and Trade, Dispute Resolution
Date posted: February 22, 2005