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

A recent article in this journal 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. By contrast, independent tribunals, meaning tribunals that resemble domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent judicial decision makers are suspect because they are more likely to allow moral ideals, ideological imperatives, or the interests of third parties to influence their judgments. In this Response, we identify 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 in specific multilateral settings and then use more fine-grained structural, political, and discursive mechanisms to limit the potential for judicial overreaching.