Eric A. Posner and John C. Yoo,
Judicial Independence in International Tribunals, 93
Cal. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1707
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 are dependent tribunals. We argue that the evidence does not support this view, and, moreover, that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. We also 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 skeptical predictions about the International Criminal Court and the International Tribunal for the Law of the Sea, the newest international tribunals.