Why states create international tribunals: A theory of constrained independence

Over the last fifteen years, states have created more independent international tribunals, submitted themselves to the jurisdiction of such tribunals, and litigated disputes before such tribunals in increasing numbers. These developments appear to be inconsistent with principal-agent theory, which asserts states are rational actors jealous of their sovereignty and dubious of delegating authority to international institutions they cannot tightly control. However, such delegations of judicial authority actually serve state interests by enhancing credibility of international law commitments in specific multilateral settings. Having established such tribunals, however, states are concerned that independent judges operate within acceptable parameters. They thus establish a system of "constrained independence," using fine-grained legal, structural, political, and discursive mechanisms to limit the potential for judicial overreaching.