Dependence vs. Independence
In their paper Judicial Independence in International Tribunals, Eric Posner and John C. Yoo argue elaborately for the concept that international tribunals that are dependent are more effective than independent international tribunals. Posner and Yoo’s reasons behind their radical claims lie in their skepticism of the claims of effectiveness of independent tribunals. They believe that international law scholars have transferred the logic of independence in the domestic arena to the logic of independence in the international sphere, wrongly relating the consequences of biased domestic judges to the same consequences of biases in international courts. In response to Posner and Yoo’s paper, Laurence R. Helfer and Anne-Maria Slaughter published Why States Create International Tribunals: A Response to Professors Posner and Yoo, addressing in detail the flaws in Posner and Yoo’s paper. Helfer and Slaughter maintain that international tribunals are highly effective by virtue of their independence, and question Posner and Yoo’s selection bias and murky analyses. The realist in me would have to align with Posner and Yoo, if only because I agree with their overarching argument that states will choose to interact with international tribunals only if the states can be assured that their interests will be protected. However, Helfer and Slaughter do an excellent job of shedding light on the flaws in Posner and Yoo’s methodology… Keep Reading.