ALTERNATIVE PERSPECTIVES ON THE INDEPENDENCE OF INTERNATIONAL COURTS The panel was convened at 12:30 p.m., Friday, March 31, by its chair, Richard H. Steinberg of the University of California at Los Angeles School of Law, who introduced the panelists: Eric A. Posner of The University of Chicago School of Law; Heiner Schulz of The University of Pennsylvania Department of Political Science; Judge Rosalyn Higgins of the International Court of Justice; and Karen J. Alter of the Northwestern University Department of Political Science. AMAP OF THE ISSUES by Richard H. Steinberg * Do international courts matter? More specifically, do international courts behave suffi- ciently independently of the interests of powerful states to have a meaningful effect on state behavior? Two clear and opposing stances on this question developed in the early 1980s and have framed much of the debate that has followed. The structural realist stance has constituted the null hypothesis. Deducing from regimes theory, this view holds that international institu- tions and courts cannot act in contradiction to the interests of powerful states. If a court does so, then powerful states will withdraw consent to its jurisdiction, or take other action that will cause the international court to collapse or become irrelevant. Therefore, the argument goes, international courts can have no meaningful independent effect on state behavior. Institutionalists have offered a competing perspective. Using economic logic, some institution- alists argue that international courts may have a meaningful independent effect on state behavior insofar as they solve cooperation problems that would not otherwise be solved. Some other institutionalists, influenced by sociology, argue that courts may meaningfully affect state behavior through the normative or cognitive ‘‘pull power’’ of legitimate decisions. Three sets of research questions have emerged from this initial framing of the problem. First, what functions are performed by independent international courts? Several functions have been suggested, usually to buttress an institutionalist stance. Commentators have sug- gested that courts may complete incomplete contracts, clarifying ambiguities and filling gaps in treaties. Others have argued that the establishment of a court and submission to its jurisdiction may demonstrate the credibility of powerful states’ commitment to a treaty. Still others have argued, particularly in the international criminal law context, that courts may help build or spread particular norms or principles embodied or implicit in a treaty. Second, how should we conceptualize the extent to which international courts are con- strained? Most commonly, a strictly formal analysis has been used: treaty rules and procedures are examined to identify the possibility of a check on or correction of a court. However, commentators have increasingly considered informal political factors that may constrain the independence of international courts, such as threats to halt budget contributions that support an allegedly activist court; threats to diminish or deny a court’s jurisdiction; establishing a conservative selection process for judges, such as use of a ‘‘litmus test’’ for their selection; limiting the tenure of judges; refusal to comply with court decisions; and threats to rewrite 1 Professor of Law, University of California at Los Angeles. 1