From judicial independence to interdependence in the international sphere

Date01 August 2017
Published date01 August 2017
DOI10.1177/1023263X17723811
AuthorAida Torres Pérez
Subject MatterArticles
Article
From judicial independence
to interdependence in the
international sphere
Aida Torres Pe
´rez*
Abstract
The goal of thisarticle is to develop an analytical frameworkfor the conceptualizationof international
judicial independence. First, it will be argued that judicial independence is not to be conceived as an
end in itself but rather as a condition for the legitimacy of international courts (ICs). Also, inde-
pendence is not a monolithic concept, but one of degree and the optimal degree of independence
might vary according to the function and type of ICs. Second, I will provide a taxonomy of judicial
independence in the international sphere and identify and systematize the relevant actors and
variables. While studies about international judicial independence tend to focus on the mechanisms
available to stategovernments, this work willtake into account a broader set of actors and variables.
Finally, a notion of interdependence will be advanced as a framework for institutional design that
combines theneed to enable adjudicationfree from undue influence orpressure with mechanisms to
counterbalance judicial power. Forms of interdependence on the grounds of the principles of
accountability and checks and balances might contribute to the overall legitimacy of ICs.
Keywords
judicial independence, legitimacy, international courts, accountability, checks and balances
1. Introduction
Since the end of the Cold War, the number of international courts (ICs) has increased from six to
nearly thirty in 2017.
1
Moreover, the nature of ICs has been transformed and multilateral courts
* Law Professor at Pompeu Fabra University, Barcelona, Spain
Corresponding author:
Aida Torres Pe
´rez, Pompeu Fabra University, 08005 Barcelona, Spain.
Email: aida.torres@upf.edu
1. K.J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014), p. 68-77;
C. Romano, K. Alter and Y. Shany, ‘Mapping International Adjudicative Bodies, the Issues, and Players’, in C.P.R.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(4) 462–483
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17723811
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with compulsory jurisdiction have proliferated.
2
The increasing power and influence of ICs has
consequently invoked debates surrounding their legitimacy.
The legitimacy of ICs, as institutions vested with the power to adjudicate disputes in accordance
with the law, is heavily grounded on their independence.
3
Judicial independence demands that the
judges who apply the law to the disputes brought before them be free from undue pressures or
influences from external actors, but what judicial independence means and requires in the inter-
national sphere remains somewhat contested. The goal of this article is to contribute to building an
analytical framework for determining the notion of international judicial independence.
Judicial independence should not be conceived in absolute terms, since this is neither feasible
nor desirable. Adjudication necessarily involves a degree of discretion in the interpretation of the
law and it is possible for ICs to contribute to the creation of norms through adjudication.
4
Addi-
tionally, judges might pursue certain policy objectives or strive to expand their own power. Thus,
just like any other authority that exercises public power, ICs need to be constrained. And yet,
constraining judicial power without undermining judicial independence poses both theoretical and
practical difficulties.
Referring to international organizations, Peters has identified a shift in the scholarship from
concern about the enabling function of the law (effectiveness) to the constraining function
(accountability).
5
In the context of ICs, while the authority and effectiveness of ICs has dominated
the debate, only recently there has there been an increasing concern regarding their accountability,
6
particularly when ICs become well-established.
7
First, it will be argued that judicial independence is not to be conceived as an end in itself, but
rather as a condition for legitimacy. Also, independence is not a monolithic concept, but one of
degree.
8
The optimal degree of independence might vary according to the function and type of ICs.
Second, I will provide a taxonomy of judicial independence in the international sphere and
identify and systematize the relevant actors and variables. While studies about international judi-
cial independence tend to focus on the mechanisms available to state governments, this work will
take into account a broader set of actors and variables.
Finally, a notion of interdependence will be advanced as a framework for institutional design
that combines the need to enable adjudication free from undue influence or pressure with
Romano, K.J. Alter and Y. Shany (eds.), The Oxford Handbook of International Adjudication (Oxford University Press,
2014).
2. K.J. Alter, The New Terrain of International Law: Courts, Politics, Rights, p. 68-69.
3. R. Mackenzie and P. Sands, ‘International Courts and Tribunals and the Independence of the International Judge’, 44
Harvard International Law Journal (2003), p. 271-285; J. Crawford and J. McIntyre, ‘The Independence and Impar-
tiality of the ‘‘International Judiciary’’’, in S. Shetreet and F. Forsyth (eds.), The Culture of Judicial Independence
(Martinus Nijhoff Publishers, 2012).
4. S. Besson, ‘Getting over the Amour Impossible between International Law and Adjudication’, in C.P.R. Romano, K.J.
Alter, Y. Shany (eds.), The Oxford Handbook of International Adjudication.
5. A. Peters, ‘International Organizations: Effectiveness and Accountability’, MPIL Research Paper Series 1 (2016),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id¼2770606, p. 1.
6. D. Shelton, ‘Legal Norms to Promote the Independence and Accountability of International Tribunals’, 2 The Law and
Practice of International Courts and Tribunals (2003), p. 27-62; P. Mahoney, ‘The International Judiciary – Inde-
pendence and Accountability’, 313 The Law and Practice of International Courts and Tribunals (2008), p. 313-349.
7. See, A. Follesdal, ‘Independent yet Accountable: Stress Test Lessons for the European Court of Human Rights’, 24
Maastricht Journal of European and Comparative Law (2017).
8. S.B. Burbank and B. Friedman, ‘Reconsidering Judicial Independence’, in S.B. Burbank and B. Friedman (eds.),
Judicial Independence at the Crossroads. An Interdisciplinary Approach (Sage Publications, 2002).
Pe
´rez 463

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