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).Google Scholar

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)Google Scholar

³ Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980).Google Scholar

⁴ This can be inferred from the decisions of the ICJ in cases like those mentioned in notes 36-38 infra. Google Scholar

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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)).Google Scholar

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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).Google Scholar

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.Google Scholar

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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).Google Scholar

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.Google Scholar

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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).Google Scholar

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/.Google Scholar

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).Google Scholar

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²⁵ Id., 78.Google Scholar

²⁶ See the ruling of the NAFTA FTC (note 7).Google Scholar

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).Google Scholar

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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.”Google Scholar

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.Google Scholar

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³⁵ Supra, notes 20-26 and accompanying text.Google Scholar

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.Google Scholar

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.Google Scholar

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.Google Scholar

³⁹ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226.Google Scholar

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⁴¹ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010.Google Scholar

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.Google Scholar

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⁴⁵ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136.Google Scholar

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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).Google Scholar

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⁵³ European Court of Human Rights, Bankovic and others v. Belgium and 16 others Contracting States, 19 December 2001.Google Scholar

⁵⁴ European Court of Human Rights, Behrami v. France and Saramati v. France, Germany and Norway, 2 May 2007.Google Scholar

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⁵⁸ Infra note 64 and accompanying text.Google Scholar

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).Google Scholar

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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).Google Scholar

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.Google Scholar

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).Google Scholar

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).Google Scholar

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).”)Google Scholar

⁶⁷ Supra, note 61.Google Scholar

⁶⁸ Binder, Christina, The Prohibition of Amnesties by the Inter-AmericanCourt of Human Rights, in this issue.Google Scholar

⁶⁹ Supra, note 1.Google Scholar