2020 Volume 2020 Issue 200 Pages 200_135-200_150
The aim of this paper is to explore interdisciplinary international relations (IR) and international law (IL) research on the study of international courts. After the “legalization” theory, the study of international norms or regime complex has received much attention in the IR literature. However, the study of international courts has received less attention. The study of international courts is one of promised areas for research collaboration between IR and IL scholars. In particular, given that we have seen many instances of “backlash” against international courts, such an interdisciplinary approach is clearly needed.
This paper provides insights for explaining the relationships between states and international courts. In particular, it addresses how control mechanisms that states impose on the independence of international courts actually operate. There are two existing IR frameworks relevant for the analysis on international courts. One is the legalization concept (and the compliance theory as an effectiveness of legalization) and the other is the principal-agent theory. However, both theories are incomplete to explain the relationships between states and courts. Drawn upon recent work of Dunoff/Pollack and Creamer/Godzimirska, this paper highlights the importance of two insights for analyzing the interactions between states and courts: one is institutional design choices for creating courts and the other is standards for assessing the legitimacy of courts.
This paper takes up a recent case of the WTO dispute settlement system in crisis in order to explain why these two insights are important for studying international courts. This paper is not intended to directly address the recent issue of the selection process of the WTO Appellate Body’s members. Rather, this paper attempts to explain how the consideration of court design and standards of legitimacy can help understanding the current crisis of the WTO dispute settlement system.
