The independence of international courts – making reputation work?
| Author | Stefan Voigt |
| Published date | 01 August 2017 |
| Date | 01 August 2017 |
| DOI | 10.1177/1023263X17723818 |
| Subject Matter | Articles |
Article
The independence of
international courts –
making reputation work?
Stefan Voigt*
Abstract
Posner and Yoo challenge the conventional wisdom that independent courts are desirable at the
international level. Based on the finding that factually independent courts on the nation state
level have a number of positive effects, I ask whether factually independent courts at the
international level also have positive effects. I argue that the main product supplied by inter-
national courts is information and that reliable information about the past behaviour of parties to
a treaty is a necessary condition for the reputation mechanism to work internationally. I further
argue that the independence of international judges is a necessary condition for the courts to
produce high quality information.
Keywords
judicial independence, compliance with international obligations, reputation
1. Introduction
It is commonplace to demand that courts be independent from pressures by the other government
branches as well as from the conflicting parties at the nation-state level. An independent judiciary
has been described as a necessary component in the implementation of the rule of law. If the rule of
law implies that everybody – including the governing – is subject to the same rules, an independent
judiciary is necessary to subject both the legislature as well as the executive to these rules.
Judiciaries that enjoy actual independence pay off: Feld and Voigt show that they are strongly
correlated with speedier economic growth.
1
* Director Institute of Law & Economics, University of Hamburg, Hamburg, Germany
Corresponding author:
Stefan Voigt, Director Institute of Law & Economics, University of Hamburg, Johnsallee 35, 20148 Hamburg, Germany.
Email: Stefan.voigt@uni-hamburg.de
1. L. Feld and S. Voigt, ‘Economic Growth and Judicial Independence: Cross-Country Evidence using a new set of
indicators’, 19 European Journal of Political Economy (2003), p. 497-527; L. Feld and S. Voigt, ‘Judicial Independence
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(4) 511–530
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DOI: 10.1177/1023263X17723818
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Independent courts are, therefore, a necessary condition for the rule of law and they are con-
ducive to higher economic growth. Although the precise ways through which judicial indepen-
dence triggers these positive effects are still largely unknown, it seems almost self-evident to
suggest transferring the arguments made in favour of an independent judiciary within the domestic
realm to the international realm. At the domestic level, courts can help governments make their
promises credible. A promise made to potential foreign investors might not be very credible unless
the courts in that country have a proven track record of being independent, and the government has
a record of enforcing court decisions – even if they are not in government’s short-term interest.
The international level differs from the national one in many ways. Nevertheless, the argu-
ment that independent courts are also advantageous at the international level has been made a
number of times.
2
The argument, however, has not been met with unanimous support. Posner and
Yoo, for instance, have challenged this view and plead in favour of dependent courts on the
international level.
3
This article adds to the literature on two levels: on a conceptual level, it points to an impo rtant
function of judicial independence that has long been neglected, namely its role as a provider of
high-quality and trustworthy information, not only to the parties directly involved but to all
actors acting within a specific order. It is impossible for any government to closely observe the
behaviour of all other governments. Consequently, it is also impossible for any single govern-
ment to evaluate whether other governments have fulfilled their obligations under a specific
international treaty. This is why high-quality and trustworthy information on these aspects could
be very valuable to governments.
Reputation plays a crucial role at the international level. Since there is no world state with far-
reaching enforcement powers, both the compliance with international tre aties as well as with
decisions of international courts is even more fragile than it is in the nation-state ambit. In such
a setting, being attributed the reputation of being a trustworthy complier can be valuable. And
losing such reputation can be costly. For reputati on to function well, it crucially depends on
reliable information regarding the behaviour of other governments as well as whether or not they
have complied with their obligations under a treaty. In the end, a government’s decision to
cooperate with another government mi ght depend on whether the other governmen t enjoys a
reputation as complier or not. I argue that independent judges are likely to be regarded as more
reliable providers of such information than dependent ones, ceteris paribus. Reputation will
therefore function better if judges are independent.
The other level on which this article adds to the literature is by conceptually preparing two
indicators measuring both the de jure as well as the de facto independence of international judges.
and Economic Growth: Some Proposals Regarding the Judiciary.’, in R.D. Congleton and B. Swedenborg (eds.),
Democratic Constitutional Design and Public Policy: Analysis and Evidence (MIT Press, 2006), p. 251-288. In a more
recent paper (S. Voigt, J. Gutmann and L. Feld, ‘Economic Growth and Judicial Independence, a Dozen Years On:
Cross-Country Evidence Using an Updated Set of Indicators.’, 38 European Journal of Political Economy (2015), p.
197-211), it was not only shown that the earlier results were robust even when the time-period under scrutiny was
changed as well as partially changing the countries sampled; but also, that improvements in de facto judicial inde-
pendence are associated with improvements in growth rates, hence lending additional arguments in favor of interpreting
the described relationship as causal.
2. See, e.g. L. Helfer and A.-M. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, 107 Yale Law
Journal (1997), p. 273-391; and R. Keohane, A. Moravcsik and A.-M. Slaughter, ‘Legalized Dispute Resolution:
Interstate and Transnational’, 54 International Organization (2000), p. 457-88.
3. E. Posner and J. Yoo, ‘Judicial Independence in International Tribunals’, 93 California Law Review (2005), p. 1-74.
512 Maastricht Journal of European and Comparative Law 24(4)
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