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Why Do States Delegate Authority to Independent International Tribunals?

Even Independent International Tribunals Are Constrained

Why Might States Use International Tribunals?

Courts Versus Arbitration in Settling Disputes among States

Is There a Relationship between Effectiveness and the Independence of International Courts?

Are independent international tribunals more effective than dependent ones?

Legal scholars Eric Posner and John Yoo think so. In fact, Posner and Yoo argue that in an international arena, tribunals that are dependent on the interests of the states they serve are likely to be more effective. Contrary to prevailing legal thinking, they say that independent tribunals are not as effective in an international setting.

Not so, say scholars Laurence Helfer and Anne-Marie Slaughter. They argue that not only did Posner and Yoo get their facts wrong, but their analysis was flawed as well

Explosion of Independent International Tribunals

In their article, Judicial Independence in International Tribunals, Posner and Yoo present statistics to demonstrate that even though the number of independent international tribunals has grown, states really are not using these tribunals as much as they are more dependent tribunals.

To the contrary, argue Helfer and Slaughter, there has been a positive explosion in the use of independent international tribunals. We can see this dramatic grown in:

• The increased number of independent tribunals,
• The greater recognition that states give to these tribunals,
• The increased case load of these tribunals.

Increasing Number

Helfer and Slaughter argue that Posner and Yoo examine less than half of the international courts and tribunals that have come into existence over the past forty years. In contrast to the eleven courts and tribunals that Posner and Yoo examine, Helfer and Slaughter identify twenty-six.

This means that since World War II, the number of independent international adjudicatory bodies has grown from zero to twenty-six. Based simply on the increase in the number of courts and tribunals, the adjudicatory landscape has experienced a much greater transformation than Posner and Yoo indicate.

Better Recognition

However, a simple increase in the number of independent courts and tribunals does not tell the whole story. What good would an international tribunal be if states failed to recognize their importance? This would be something like creating a large library only to decide that you do not like to read.

However, Helfer and Slaughter say that we can see that states are, in fact, recognizing the importance of independent courts and tribunals. We know this because:

• An increasing number of states are ratifying treaties that require the use of independent international courts or tribunals to settle treaty disputes (in contrast, a treaty could specify arbitration to resolve treaty disputes),
• Even when it is optional for states to recognize the jurisdiction of the court or tribunal, states are increasingly likely to submit to the court's jurisdiction.

Rising Caseloads

But, merely creating and recognizing independent courts and tribunals is not enough. Do states actually use these institutions more? Contrary to Posner and Yoo, Helfer and Slaughter say that states are using independent courts and tribunals more often, and we can see this in the increased number of cases being heard.

Helfer and Slaughter cite statistics indicating that over 80% (14,946 of 18,277) cases have been heard by international tribunals in the last 13 years alone. Even if this increase in case loads is qualified by controlling for the number of states that have ratified the courts and the number of years that the court has been in existence, case load is only one measure of the increased use of international courts and tribunals.

Definition and Measurement Problems

An analysis is only as good as the way you define and measure your terms. For instance, if you use the term “weight” to mean the distance between to points, or you ignore all measurements that do not fit your model, you are not going to get meaningful results. In other words, “junk in, junk out.”

Helfer and Slaughter say that Posner and Yoo's analysis is faulty on both counts.

Effectiveness Is Not the Same as Compliance

Posner and Yoo measure international adjudicatory effectiveness in terms of whether states comply with the institution's decision. The problem, say Helfer and Slaughter, is that compliance is not the same as effectiveness, and confusing the two only causes problems.

Compliance does not take into account the court's purpose. One of the main functions of independent courts and tribunals is to provide information and insight for the disputing parties. What does the treaty mean in this situation? What facts are relevant to the case? An independent court or tribunal can be very successful in providing this information quite apart from what the parties to the dispute decide to do with this information.

Compliance is difficult to measure. In many cases it is very hard to measure compliance. If a court awards monetary damages to one state but the other state takes several years to pay those damages, does this count as compliance or not? And, in some situations it is difficult to tell what compliance even means. In cases that are less clear than monetary damages, the court has to decide what counts as compliance, and judgments about what counts vary widely.

Measuring changes in state behavior is more than compliance. Finally, what commitments have states asked the court or tribunal to police? If a court's job is to monitor and evaluate an international agreement that is, basically, a reflection of common domestic policies, then compliance is likely to be very high. But, does this really mean that the court is more “effective” since the court is not really changing state behavior? Or, the other way around, if the job of the court is to police an agreement that is very different than the status quo (that is, the agreement requires the states to act in quite different ways than they currently are), then even a moderate or low rate of compliance may indicate a change in state behavior.

Why Not to Drop Important Tribunals from the Analysis

A basic tenet of good research is that you take into account all relevant cases, not just the ones that fit your theory. Helfer and Slaughter say that Posner and Yoo do not do this.

In Posner and Yoo's analysis, there appears to be a relationship between the independence of a court or tribunal and its effectiveness. However, when three important adjudicatory bodies are dropped from the analysis (the EJC, the ECHR and the WTO), the relationship between effectiveness and independence disappears.

“Foul!” say Helfer and Slaughter. Even though Posner and Yoo present arguments for why these three tribunals should be dropped from the analysis, Helfer and Slaughter are not convinced. Posner and Yoo say that each of these three adjudicatory bodies should be dropped from the analysis because they are special cases and don't apply. But, say Helfer and Slaughter, every independent international court or tribunal has its own special jurisdiction and characteristics, so there is no good reason to drop these cases.

How Not to Choose Your Variables

The question is whether independent international courts or tribunals are effective. You can only answer this question if you take into account a representative sample of international adjudicatory bodies. Helfer and Slaughter say that Posner and Yoo ignore some particularly important types of international adjudicatory bodies: quasi-judicial review bodies and tribunals with supranational jurisdiction.

Include Quasi-judicial Review Bodies

A quasi-judicial review body provides information, interprets legal rules and makes recommendations for states. What is different about quasi-judicial bodies is that their findings and decisions are not binding on states. They provide court-like functions without being courts, but still exhibit a degree of independence.

Helfer and Slaughter say that there are nearly fifty quasi-judicial review bodies currently (as of 2005) in existence. If you want to understand the relationship between independence and effectiveness, you have got to take these quasi-judicial bodies into account. This type of judicial body is underrepresented in Posner and Yoo's study.

Include Tribunals with Supranational Jurisdiction

Some judicial bodies have supranational jurisdiction. Courts that resolve disputes among states have international jurisdiction. In contrast, courts or tribunals that can resolve disputes between states and individuals or non-state organizations (like NGOs) have supranational jurisdiction.

Helfer and Slaughter say that Posner and Yoo ignore the “vast majority” of supranational courts. The problem, say Helfer and Slaughter, is that if you want to understand the relationship between independence and effectiveness, you've got to take these courts into account.

Important Variables Posner and Yoo Missed

Helfer and Slaughter say that Posner and Yoo also omitted some important variables that provide insight into the relationship between tribunal independence and effectiveness.

Political and Discursive Constraints

Posner and Yoo also fail to take into account the political climate in which a court operates. For instance, a court may be formally independent, however, the rules within which a court operates may limit the scope of the decisions that the court can actually make.

Additionally, an independent court may also be limited by legal discourse. That is, the range of acceptable decision making may be limited by the legal attitudes and perspective of other judges within the global community of courts. Additionally, an independent court may operate within a context where the interests of states are easily and effectively communicated. So, even though a court may have the formal ability to make decisions over a wide legal area, states may be able to communicate that only a limited scope of decision making is acceptable.

Judicial Access Rules

Access to an international tribunal is correlated with both independence and effectiveness.

• Courts open to cases from individuals or non-state organizations (supranational jurisdiction) tend to be independent,
• Courts with supranational jurisdiction are also used more often since cases can be brought not only by states, but by a multitude of individuals or non-state organizations.

In methodological terms, any time a variable is correlated to both independent and dependent variable, it will add important information on the relationship. In other words, access rules make a difference when understanding the relationship between court independence and effectiveness.

Bottom Line

Helfer and Slaughter argue that independent international courts are more likely to be effective in certain circumstances than dependent tribunals. Even though Eric Posner and John Yoo argue otherwise, Helfer and Slaughter cite a range of problems with Posner and Yoo's analysis that discredit their conclusions.

Other Keytexts from this source

Even Independent International Tribunals Are Constrained

Why Do States Delegate Authority to Independent International Tribunals?