There appears to be a widespread perception, particularly among developing states, that international institutions continue to be disproportionately influenced by a small group of powerful states that played a dominant role in their creation and design. In recent years this has led to a growing acceptance among international legal scholars that the future legitimacy and credibility of international tribunals will be critically tied to the extent to which they are viewed as independent.
1 On the link between judicial independence and legitimacy, see, e.g., Armin von Bogdandy & Ingo Venzke, In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification (2010), available at: http://ssrn.com/abstract=1593543; Ruth MacKenzie & Philippe Sands, International Courts and Tribunals and the Independence of the International Judge, 44 Harvard International Law Journal 271 (2003).
2 Supra, note 1. Laurence R. Helfer & Slaughter, Anne-Marie, Why States Create International Tribunals: A Response to Professors Posner and Yoo 93 Cal. L. Rev. 1, 44-57 (2005) discusses the political and structural factors that motivate states to create and constrain the independence of international tribunals. See also Robert O. Keohane et al., Legalized Dispute Resolution: Interstate and Transnational, 54 Int'l Org. 457, 460-62 (2000) (referring also to the level of legal discretion that judges may exercise when interpreting a treaty, and the degree of control that governments exert over a tribunal's material and human resources, as also playing a role in determining overall tribunal independence)
3 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980).
4 This can be inferred from the decisions of the ICJ in cases like those mentioned in notes 36-38 infra.
5 For an analysis of the methods for controlling international tribunals, see Jacob Katz Cogan, Competition and Control in International Adjudication, 48 Virginia Journal of International Law 412 (2008); Ginsburg, Tom, International Judicial Lawmaking (2005), available at: http://ssrn.com/abstract=693861.
6 On the effects of the ability of states to pick and choose among international tribunals, see Eyal Benvenisti & George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 Stanford Law Review 595, 628 (2007).
7 Such as the NAFTA Free Trade Commission composed of representatives of the three member states that has the authority to overrule interpretations of the NAFTA by arbitrators. See NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001, available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/nafta-interpr.aspx?lang=en. Similarly, “[t]he [ECJ's] discretion to interpret secondary legislation was curtailed by the move from unanimity to [Qualified Majority Voting] in the [European] Council” (George Tsebelis & Geoffrey Garrett, The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union, 55 International Organization 357, 359 (2001)).
8 On the widespread renegotiating of investment treaties, see UNCTAD World Investment Report 2010, 86, available at: http://www.unctad.org/Templates/Page.asp?intItemID=1465.
9 Simma, Bruno, Universality of International Law from the Perspective of a Practitioner, 20 EJIL 265, 288 (2008).
10 See, e.g., Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, 166 (ICJ reviews legality of judgment of United Nations Administrative Tribunal).
11 Administrative Tribunal of the International Labour Organization, Bustani v. Organisation for the Prohibition of Chemical Weapons, Judgment No. 2232 of 16 July 2003, available at: http://www.ilo.org/public/english/tribunal/fulltext/2232.htm) (The Tribunal reaffirms that the independence of international civil servants is an essential guarantee for the proper functioning of international organizations).
12 For WBIP cases, see http://www.inspectionpanel.org/.
13 See, e.g., Reparations for Injuries Suffered in the service of the United nations, ICJ Reports 1949, 178, 182; Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 172; José E. Alvarez, International Organizations as Law-makers 92-95 (2005); Klabbers, Jan, An Introduction to International Institutional Law 70-71 (2002).
14 The WTO Appellate Body decision in European Communities — Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/R, 18 September 2000 and WT/DS135/AB/R, 12 March 2001.
15 On the negative reactions of developing countries, see Petros C. Mavroidis, Amicus Curiae Briefs Before The WTO: Much Ado About Nothing, Jean Monnet Working Paper 2/01, available at: http://centers.law.nyu.edu/jeanmonnet/papers/01/010201.html.
16 E.g., Thomas W. Wälde & Sabahi, Borzu, Compensation, Damages and Valuation, in: The Oxford Handbook of International Investment Law, 1049 (Peter Muchlinski, Federico Ortino & Christoph Schreuer eds, 2008).
17 On the lawmaking by international criminal tribunals, see Milan Kuhli & Klaus Günther, Judicial Lawmaking, Discourse Theory, and the ICTY on Belligerent Reprisals, in this issue; Mia Swart, Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and ‘Adventurous Interpretation', 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 459 (2010); Danner, Allison Marston, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, 59 Vanderbilt Law Review 1 (2006). Cogan cites statements by the representatives of Argentine and Venezuela during the Security Council debates on the establishment of the ICTY and the ICTR to the effect that these international tribunals would not have powers to modify international law, Cogan (note 5), 438.
18 Benvenisti & Downs (note 6). On the difficulties of developing countries to create coalitions at the WTO, see Sonia E. Roland, Developing Country Coalitions at the WTO: In Search of Legal Support, 48 Harvard International Law Journal 483 (2007).
19 This was ultimately the concern of the Appellate Body in the Shrimp/Turtle Case. See Robert Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, 27 Columbia Journal of Environmental Law 491 (2002).
20 David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (2008); Harten, Gus van, Investment Treaty Arbitration and Public Law (2007). See also a public statement by scholars, available at: http://www.osgoode.yorku.ca/public_statement/.
21 Fidler, David P., A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization, 35 Texas International Law Journal 387 (2000). For support of the system, referring to it as an “Athenian” type of empire emerging out of the myriad of investment treaty regimes, see José E. Alvarez, Contemporary Foreign Investment Law: An “Empire of Law” or the “Law of Empire”?, 60 Alabama Law Review 943 (2009).
22 Van Harten (note 20), 169.
23 On the importance for arbitrators of their reputation, see Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, 73 Fordham Law Review 1521, 1596 (2005).
24 Franck, Susan D., Empirically Evaluating Claims About Investment Treaty Arbitration, 86 North Carolina Law Review 1, 50 (2007).
25 Id., 78.
26 See the ruling of the NAFTA FTC (note 7).
27 As Lauterpacht observed already in 1958, “In few matters do judicial discretion and freedom of judicial appreciation manifest themselves more conspicuously than in determining the existence of customary international law.” Hersch Lauterpacht, The Development of International Law by the International Court 368 (1958).
28 Meron, Theodor, Revival of Customary Humanitarian Law, 99 AJIL 817, 819 (2005); Roberts, Anthea Elizabeth, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757, 758-759 (2001).
29 See the International Court of Justice judgments in Case concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7; Case Concerning the Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20 April 2010.
30 On the lawmaking by international criminal tribunals, see, supra, note 17.
31 Gill, Terry D., International Decisions (on ELSI), 84 AJIL 248, 257 (1990).
32 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports 1974, 3; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, ICJ Reports 1974, 175, paras 45, 53 respectively: “The Court is aware that a number of States has asserted an extension of fishery limits. The Court is also aware of present endeavours, pursued under the auspices of the United Nations, to achieve in a third Conference on the Law of the Sea the further codification and progressive development of this branch of the law […]The very fact of convening the third Conference on the Law of the Sea evidences a manifest desire on the part of all States to proceed to the codification of that law on a universal basis, including the question of fisheries and conservation of the living resources of the sea. Such a general desire is understandable since the rules of international maritime law have been the product of mutual accommodation, reasonableness and co-operation. So it was in the past, and so it necessarily is today. In the circumstances, the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.”
33 International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment of 14 February, available at: http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm.
34 International Court of Justice, Case Concerning Jurisdictional Immunities (Federal Republic of Germany v. Italy), Application of the Federal Republic of Germany, 23 December 2008, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=60&case=143&code=gi&p3=0.
35 Supra, notes 20-26 and accompanying text.
36 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1953-1954), Advisory Opinion of 13 July 1954, ICJ Reports 1954, 47. Also, despite grave concerns the ICTY found implicit authority for the Security Council to set up criminal courts for enforcing the laws of war, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, Case No. IT-94-1-AR72, 2 October 1995.
37 “Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted.” Certain Expenses (note 13), 168.
38 Undoubtedly, it asserted, “the Court does not possess powers of judicial review or appeal in respect of decisions taken by the United Nations organs concerned.” Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16, para. 89. The ICJ did not accept the invitation to review the legality of the Security Council's Resolution to impose sanctions on Libya Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, 3.
39 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226.
40 Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, 253; Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457.
41 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010.
42 International Court of Justice, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14.
43 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Reports 2003, 16.
44 See Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12; LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466.
45 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136.
46 Infra, notes 53-54 and accompanying text.
47 McNollgast, , Conditions for Judicial Independence, Research Paper No. 07-43, April 2006, available at: http://ssrn.com/abstract=895723; McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 Southern Californian Law Review 1631 (1995). (McNollgast is a collective pen name that is employed by three longtime collaborators: Matthew McCubbins, Roger Noll, and Barry Weingast.)
48 Stephenson, Matthew C., “When the Devil Turns… “: The Political Foundations of Independent Judicial Review, 32 Journal of Legal Studies 59 (2003).
49 Id., 84.
50 Id., 73. On the link between political competition and independent courts, see also Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 21–33 (2003); Ramseyer, J. Mark, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 Journal of Legal Studies 721 (1994); Landes, William M. & Posner, Richard A., The Independent Judiciary in an Interest-Group Perspective, 18 Journal of Law and Economics 875 (1975).
51 Stephenson, Matthew C., Court of Public Opinion: Government accountability and Judicial Independence, 20 Journal of Law, Economics & Organization 379 (2004). On judicial review as a way to overcome the asymmetric information problem that is inherent in representative democracy, see also David S. Law, A Theory of Judicial Power and Judicial Review, 97 Georgetown Law Journal 723 (2009).
52 Benvenisti, Eyal, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AJIL 241 (2008).
53 European Court of Human Rights, Bankovic and others v. Belgium and 16 others Contracting States, 19 December 2001.
54 European Court of Human Rights, Behrami v. France and Saramati v. France, Germany and Norway, 2 May 2007.
55 See Benvenisti, Eyal & Downs, George W., Will National Court Cooperation Promote Global Accountability? Prospects for the Judicial Review of International Organizations (draft paper).
56 See the Lisbon Treaty Judgment of the German Constitutional Court, 30 June 2009, available at: www.bverfg.de/entscheidungen/es20090630_2bve000208en.html; Brunner v. The European Union Treaty, 1993 German Constitutional Court (trans. in  Common Market Law Reports 57); Czech Republic Constitutional Court, Treaty of Lisbon II, 3 November 2009, available at http://www.usoud.cz/view/pl-29-09.
57 ECJ Grand Chamber, Joint Cases C-402/05 and C-415/05, Yassin Abdullah Kadi v. Council of the European Union, Judgment of 3 September 2008.
58 Infra note 64 and accompanying text.
59 The Dutch Constitution of 1953 provided for the supremacy of international treaties over domestic statutes. The Luxemburg Court of Cassation (in 1950) and its Conseil d'Etat (in 1951) acknowledged the supremacy of treaty obligations over local laws. In its 1971 Le Ski decision, the Belgian Court of Cassation, unable to rely on express provision in the Belgian Constitution, invoked the monist theory of the primacy of international law over national legislation, in determining that treaties supersede subsequently incompatible national laws. See Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 EJIL 159, 163 (1993).
60 Helfer, Laurence R. & Alter, Karen J., Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice, 64 International Organization 563 (2010).
61 Lupo, Yonathan & Voeten, Eric, Precedent on International Courts: A Network Analysis of Case Citations by the European Court of Human Rights (2010), available at: http://ssrn.com/abstract=1643839.
62 This is especially the case with the ICJ where elections are dominated by the P5. See Mackenzie & Sands (note 1); Edward McWhinney, Law, Politics and “Regionalism” in the Nomination and Election of World Court Judges, 13 Syracuse Journal of International Law and Commerce 1 (1986). But this is also the case with time-limited appointments: The Commission on Democracy through Law of the Council of Europe (the “Venice Commission”) has determined that “time-limited appointments as a general rule can be considered a threat to the independence and impartiality of judges.” (CDL-AD(2002)012 Opinion on the Draft Revision of the Romanian Constitution, para. 57).
63 This may also be the case of the Andean Tribunal of Justice. Helfer & Alter (note 60) emphasize the ADJ's interbranch-dependency, but they also mention that member states have exited from the Andean Community and this would imply that the AGJ was also interstate-dependent.
64 The greater appetite for open markets and more judicial receptivity to satisfy this appetite is reflected in the rate of judicial referrals to the ECJ. The courts of the smaller states referred questions to the ECJ significantly more (relatively to the size of their population) than those of the courts of the bigger states. Belgium and the Netherlands brought much more references per-person than the rest of the member states. Between 1970-79, (after the expansion from 6 to 12 member states) the courts of Belgium and the Netherlands referred 4 cases per 500,000 persons per year (CPPY), while German courts brought 2.2 CPPY and France, Italy, UK and Denmark less than 1. Between 1980-89 (after another expansion) the courts of Belgium and the Netherlands brought 7.1 CPPY each, while Germany 2.8, France 2.6, Italy 1 and UK less than 1. Between 1990-98 (yet another expansion) Belgian and Dutch courts brought 6 CPPY (Germany 3 CPPY, France 2, Italy 3, UK 1). While in the total account, the courts of the larger countries contributed the larger number of references, but even the absolute numbers are telling, with German courts referring 246 cases during 1980-89 while Dutch courts referring 224 cases during the same period. This information is taken from Figure 2.1 in Karen J. Alter, Establishing the Supremacy of European Law 35 (2003).
65 The French and the German courts presented the strongest resistance to the ECJ supremacy, see Alter (note 64), ch. 3 (on German courts reaction to the ECJ rulings) and ch. 4 (on the reactions of the French courts).
66 See Benvenisti & Downs (note 6), 621. On the lack of exit, see Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/CN.4/L.682, para. 176 (“States cannot contract out from the pacta sunt servanda principle - unless the speciality of the regime is thought to lie in that it creates no obligations at all (and even then it would seem hard to see where the binding force of such an agreement would lie).”)
67 Supra, note 61.
68 Binder, Christina, The Prohibition of Amnesties by the Inter-AmericanCourt of Human Rights, in this issue.
69 Supra, note 1.
* Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University, Faculty of Law. This author would like to thank the Israel Science Foundation for a grant on which part of this research was based.
** Professor of Politics, New York University. We thank Armin von Bogdandy, Isabel Feichtner, Jochen Frowein, Benedict Kingsbury and Ingo Venzke for very helpful comments and suggestions.
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