Judging under constraint: Formal independence and strategic behavor of international courts

PluriCourts Lunch Seminar with Theresa Squatrito.

Abstract

International courts (ICs) have become key institutions in international cooperation, serving crucial roles in global governance. Despite their increased prominence, the behavior of international courts is not fully understood. This paper explores how ICs strategically behave and the factors that might shape that behavior. In particular, this paper examines if and how formal independence, as a dimension of institutional design, affects judicial behavior. Are strategic behaviors linked to institutional safeguards to independence, and if so, which types of behavior? To gain traction on this matter, this paper engages in a comparative case study analysis of the East African Court of Justice (EACJ) and the African Court of Human and Peoples' Rights (ACtHPR). The analysis reveals that ICs with less independence demonstrate greater tendencies toward judicial restraint and persuasive argumentation. It suggests that a key mechanisms linking design to behavior is institutional legitimacy. ICs that are designed with less independence can have perceived legitimacy deficits, which in turn incentivizes particular behaviors. These findings have implications for how we think about the behavior of international courts, and international organizations more broadly, by elucidating upon the relationship between design, legitimacy and institutional behavior.

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PluriCourts Lunch Seminars are a forum for pluridisciplinary discussion of core issues relating to international courts and tribunals. PluriCourts scholars or invited speakers present new and ongoing research or comment on current questions. The seminars are open to everyone.

Tags: Independence and accountability, Human Rights
Published Feb. 13, 2020 2:10 PM - Last modified Feb. 13, 2020 2:10 PM