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

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\u27 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

Toward a Theory of Effective Supranational Adjudication

Supranational adjudication in Europe is a remarkable and surprising success. Europe\u27s two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such supranational jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a community of law, a web of nominally apolitical relations among subnational and supranational legal actors. The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a checklist of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions\u27 effectiveness. After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly court-like. Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law

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

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\u27 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

Filling Power Vacuums in the New Global Legal Order

In her Keynote Address at the October, 12, 2012 Symposium, Filling Power Vacuums in the New Global Legal Order, Anne-Marie Slaughter describes the concepts of “power over” and “power with” in the global world of law. Power over is the ability to achieve the outcomes you want by commanding or manipulating others. Power with is the ability to mobilize people to do things. In the globalized world, power operates much more through power with than through power over. In contrast to the hierarchical power of national governments, globally it is more important to be central in the horizontal system of multiple sovereigns. This Address illustrates different examples of power over and power with. It concludes that in this globalized world, lawyers are ideally trained and positioned to exercise power

A Typology of Transjudicial Communication

Courts are talking to one another all over the world. Mary Ann Glendon describes a brisk international traffic in ideas about rights, conducted by judges. In Europe generally, she adds, and in Australia, Canada, and New Zealand, national law is increasingly caught up in a process of cross-fertilization among legal systems

Building Global Democracy

Instead of disengaging from international institutions, the United States must work within them more equitably and effectively. Bolton\u27s insistence on protecting a narrow and outdated conception of sovereignty will only undermine US power and ability to pursue its interests, including the advancement of its most fundamental values. At the same time, however, the United States should take the lead in designing a new generation of international institutions and redesigning old ones to ensure that they include multiple mechanisms for ensuring popular participation. To date, efforts to encourage such participation have focused on ensuring access and input from non-governmental organizations ( NGOs ). But NGOs, although important and often powerful actors, do not necessarily represent the world\u27s peoples. Governments do, particularly elected representatives sitting in national legislatures. Yet in designing the institutions of global governance, these men and women are all too often left out. Although space constraints preclude offering a detailed proposal in this regard, I conclude by offering a suggestion for how the UN could develop a mechanism for hosting networks of national legislators

Global Government Networks, Global Information Agencies, and Disaggregated Democracy

This essay seeks to broaden our understanding of government networks by placing them in more historical context and by elaborating different types of government networks within and without traditional international institutions. After a brief overview of the literature on transgovernmentalism since the 1970s in Part I, Part H sets forth a typology of three different categories of government networks. Part III then seeks to pinpoint the specific accountability concerns associated with each type. Part IV offers one approach to answering some current accountability concerns by adapting the concept of information agencies from the European Union to the global level. This analysis rests on a claim of similarity between global government networks and a number of EU governance structures, primarily the comitology system and related transgovernmental and public-private networks. Finally, building on the same premise, Part V briefly surveys some of the more fundamental reconceptualizations of democracy and distills various elements of these visions that could be useful in strengthening the democratic pedigree of government networks. It concludes with an appeal to add global legislative networks to the pluralist mix of global governance mechanisms