Abstract
Since the end of the Second World War, the number of international courts has increased exponentially all over the world. Their field of action is very broad as these courts decide issues ranging from trade agreements to human rights. Given that their decisions are binding, their impact on internal policies of states and on their legal systems is significant. At the same time, the ever-increasing power that international courts are acquiring has raised concerns regarding their legitimacy, effectiveness and independence. Firstly, the present text deals with the issue whether the independence of international courts should be treated in the same way as that of national courts or if there is something different in the international judicial system. In the attempt to identify the different variables that could affect the degree of independence of international judiciary, examples from specific international tribunals will be used, while maintaining the focus on the general phenomenon of independence of the international judicial system. The analysis determines that, at international level, there is a continuous search for balance between the aspiration to independence, on the one hand, and the responsibility towards the expectations and interests of the main stakeholders, on the other. In fact, while judicial independence is a fundamental component of democracy, an equally fundamental democratic idea is that there must be controls over the exercise of power. In literature, it has been stated that the choice is not between dependent and independent international tribunals, but between “complete dependence” and “constrained independence”; this means that states set up independent international courts to improve the credibility of commitments in specific multilateral contexts, and then use structural and political mechanisms to control judicial independence. In conclusion, it seems that the objective of judicial independence of international courts is not “unconstrained independence”. The tendency would be for a level of independence that would allow judges to decide cases “lawfully and impartially, without improper control and influence”. Therefore, the challenge would be to find a balance so that appropriate restraints are placed without compromising the essence of judicial independence. In light of the above, it seems that the still open question is whether it is conceivable a “politically optimal” level of independence or international judicial independence is instead a value to be unconditionally preserved.
Daniela Cardamone is Judge in Italy and former member of the Italian Division at the European Court of Human Rights.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Romano (1999), p. 709 et seq.
- 2.
The expression “judicialization of the international legal order” is of: Ulfstein (2014), p. 849.
- 3.
Koskenniemi (2006), p. 3.
- 4.
Conforti (2007), pp. 2–4.
- 5.
This effective definition is from: Voeten (2011), p. 1.
- 6.
For a general assessment of the principle of judicial independence in international law, see: Meron (2005), p. 359 et seq.
- 7.
Pursuant to General Assembly resolutions adopted in 1996 and 1997, the Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court was convened on 15 June 1998 in Rome.
- 8.
Press Release, U.N. Diplomatic Conference Concludes in Rome with Decision to Establish Permanent International Criminal Court, U.N. Doc. L/ROM/22 (Jul. 17, 1998).
- 9.
ICC Statute, Article 40 (2): “Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence”.
- 10.
See for example: United Nations Convention on the Law of the Sea: art. 71 (1) “No member of the Tribunal may exercise any political or administrative function, or associate actively with or be financially interested in any of the operations of any enterprise concerned with the exploitation of the resources of the sea or the seabed or other commercial use of the sea or the seabed”.
- 11.
Article 21 paragraph 3 of the European Convention of Human Rights (ECHR) states that: “During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court”.
- 12.
Dzehtsiarou and Coffey (2014), p. 4.
- 13.
Dzehtsiarou and Coffey (2014), p. 5.
- 14.
Forst (2013).
- 15.
- 16.
Blokker (2015), p. 12.
- 17.
Posner and Yoo (2005), p. 7.
- 18.
Helfer and Slaughter (2005), p. 44 et seq.
- 19.
Helfer and Slaughter (2005), p. 44.
- 20.
Mackenzie and Sand (2003), p. 272.
- 21.
Danner (2006), pp. 35–71.
- 22.
- 23.
Danner and Voeten (2010), pp. 35–71.
- 24.
See for an overview Helfer and Slaughter (2005), pp. 44–55.
- 25.
- 26.
- 27.
Voeten (2007), p. 4.
- 28.
- 29.
Alter (2006), pp. 22–49.
- 30.
Carrubba (2009), pp. 55–69.
- 31.
Ulfstein (2014), pp. 849–866.
- 32.
- 33.
Arnardóttir (2017), pp. 819–843.
- 34.
Ulfstein (2014), pp. 849–866.
- 35.
Terris et al. (2007), pp. 1–73.
- 36.
Mackenzie and Sand (2003), pp. 272–285.
- 37.
Von Bogdandy (2013), pp. 361–379.
- 38.
Grant and Keohane (2005), pp. 36–37.
- 39.
Sifris (2008), p. 90.
- 40.
Gewirtz (2005), p. 1.
- 41.
See for example article 1.1 of the Burgh House Principles on the Independence of the International Judiciary:
The court and the judges shall exercise their functions free from direct or indirect interference or influence by any person or entity.
- 42.
Helfer and Slaughter (2005), p. 33.
- 43.
The WTO exemplifies the first trend. It began its life on January 1, 1995 with 76 members, all of which were automatically subject to the jurisdiction of the WTO’s dispute settlement system, including its highly independent appellate body. The number of WTO members quickly surpassed 100, and, as of December 2017, membership had risen to 164.
- 44.
With 60 ratifications in July 2002, the Rome Statute of ICC enters into force. As of today, 123 countries are States Parties to the Rome Statute of the ICC.
- 45.
The European Court of Justice (ECJ) has seen its jurisdictional reach expand as more states have joined the Treaty of Rome and the numerous amendments it has spawned. From a six-state trading block, the European Community (now the EU) has now expanded to 28 members. Further enlargements are likely in the next few years.
- 46.
The ECtHR has perhaps the strongest record in this regard. At the time of the European Convention’s founding in 1953, recognition of the ECtHR’s jurisdiction was optional. That changed with the adoption of Protocol 11, which made jurisdiction compulsory and granted individuals direct access to the court in all cases. The Protocol, opened for signature in May 1994, could enter into force only if ratified by all European Convention member states. Universal ratification was quickly achieved, however, and the new Court began operating in November 1998.
- 47.
Helfer and Slaughter (2005), p. 31.
- 48.
Helfer and Slaughter (2005), pp. 44–55.
- 49.
See supra note n. 44.
References
Alter, K. J. (2006). Private litigants and the new international courts. Comparative Political Studies, 39(1), 22–49. https://doi.org/10.1177/0010414005283216
Arnardóttir, O. M. (2017). Res interpretata, erga omnes effect and the role of the margin of appreciation in giving domestic effect to the judgments of the European Court of Human Rights. The European Journal of International Law, 28(3), 819–843. https://doi.org/10.1093/ejil/chx045
Blokker, N. (2015). The governance of international courts and tribunals: Organizing and guaranteeing independence and accountability - A appeal for research. European Society of International Law (ESIL) 2015 Annual Conference (Oslo). SSRN: https://ssrn.com/abstract=2709626 or https://doi.org/10.2139/ssrn.2709626
Burgh House Principles on the Independence of the International Judiciary: “The court and the judges shall exercise their functions free from direct or indirect interference or influence by any person or entity”. Retrieved April 5, 2019, from https://www.ucl.ac.uk/international-courts/sites/international-courts/files/burgh_final_21204.pdf
Carozza, P. G. (2003). Subsidiarity as a structural principle of international human rights law. American Journal of International Law, 97, 38–79. Retrieved April 5, 2019, from https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1571&context=law_faculty_scholarship
Carrubba, C. J. (2009). A model of the endogenous development of judicial institutions in federal and international systems. The Journal of Politics, 71(1), 55–69. https://doi.org/10.1017/S002238160809004X
Conforti, B. (2007). Il ruolo del giudice nel diritto internazionale. Retrieved April 5, 2019, from https://ejls.eui.eu/wp-content/uploads/sites/32/pdfs/Autumn_Winter2007/Il_ruolo_del_giudice_nel_diritto_internazionale_%20Benedetto_Conforti_.pdf
Danner, A., & Voeten, E. (2010). Who is running the international criminal justice system? In D. Avant, M. Finnemore, & S. Sell (Eds.), Who governs the globe?. Cambridge studies in international relations (pp. 35–71). Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9780511845369.003
Danner, A. M. (2006). When courts make law: How the international criminal tribunals recast the laws of War. Vanderbilt Law Review, 59, 1. Vanderbilt Public Law Research Paper No. 05-30. Retrieved April 5, 2019, from https://ssrn.com/abstract=822809
Dzehtsiarou, K., & Coffey, D. (2014). Legitimacy and independence of international tribunals: An analysis of the European Court of human rights. Hastings International and Comparative Law Review, 37, 271. Retrieved April 5, 2019, from https://ssrn.com/abstract=2584377
Forst, D. (2013). The execution of judgments of the European Court of Human Rights. Vienna Journal on International Constitutional Law, (7), 2013. Retrieved April 5, 2019, from https://www.icl-journal.com/media/ICL_Thesis_Vol_7_3_13.pdf
Gewirtz, P. (2005). Independence and accountability of courts. China Law Review, 1(1), 11–26. https://doi.org/10.1080/17457230508522943. JSTOR.
Grant, R. W., & Keohane, R. O. (2005). Accountability and abuses of power in world politics. American Political Science Review, 29, 36–37.
Helfer, L. R., & Slaughter, A. M. (2005). Why states create international tribunals: A response to Professors Posner and Yoo. California Law Review, 93, 899–956.
Keith, K. (2014). Challenges to the Independence of the international judiciary: Reflections on the international court of justice. Leiden Journal of International Law, 30(1), 137–154. https://doi.org/10.1017/S0922156516000649
Keohane, R. O., Moravcsik, A., & Slaughter, A. M. (2000). Legalized dispute resolution: Interstate and transnational. International Organization, 54(3), 2000, 457–488. Retrieved April 5, 2019, from https://www.princeton.edu/~slaughtr/Articles/IOdispute.pdf
Koskenniemi, M. (2006). Fragmentation of International law: Difficulties arising from the diversification and expansion of international law. Report of the Study Group of the International Law Commission, United Nations. Retrieved April 5, 2019, from http://legal.un.org/ilc/documentation/english/a_cn4_l702.pdf
Kotlik, M. D. (2008). Ad Hoc Judges and Nationality of Judges in the Inter-American Court of Human Rights. Retrieved April 5, 2019, from http://www.corteidh.or.cr/docs/opiniones/OC_2008/obser_kot_ing.pdf
Kumm, M. (2004). The legitimacy of international law: A constitutionalist framework of analysis. European Journal of International Law, 15(5), 907–931. Retrieved April 5, 2019, from http://ejil.org/pdfs/15/5/397.pdf
Mackenzie, R., & Sand, P. (2003). International courts and tribunals and the independence of the international judge. Harvard International Law Journal, 44(1), 271–285.
Meron, T. (2005). Judicial independence and impartiality in international criminal tribunals. American Journal of International Law, 99, 359–369.
Posner, E. A., & Yoo, J. C. (2005). Judicial independence in international tribunals. California Law Review, 93, 1–74.
Romano, C. P. R. (1999). The proliferation of international judicial bodies: The piece of the puzzle. New York University Journal of International Law and Politics, 31, 709–751.
Schwebel, S. M. (1999). National judges and judges Ad Hoc of the international court of justice. The International and Comparative Law Quarterly, 48(4), 889–900. https://doi.org/10.1017/S0020589300063727. JSTOR.
Sifris, R. (2008). Weighing judicial independence against judicial accountability: Do the scales of the international criminal court balance? Chicago-Kent Journal of International and Comparative Law, 8, 88. Retrieved April 5, 2019, from https://ssrn.com/abstract=2292769
Terris, D., Romano, C. P. R., & Swigart, L. (2007). The international judge: An introduction to the men and women who decide the world’s cases (Loyola-LA Legal Studies Paper No. 2007-18). University Press of New England - Oxford University Press. Retrieved April 5, 2019, from https://ssrn.com/abstract=969035
Torres Pérez, A. (2015). Can judicial selection secure judicial independence? Constraining State Governments in selecting international judges. In M. Bobeck (Ed.), Selecting Europe’s judges. A critical review of the appointment procedures to the European Courts (pp. 181–201). Oxford: Oxford University Press.
Ulfstein, G. (2014). International courts and judges: Independence, interaction, and legitimacy. NYU Journal of International Law and Politics. Pluri Courts Research Paper No. 14-13; University of Oslo Faculty of Law Research Paper No. 2014-14. Retrieved April 5, 2019, from https://ssrn.com/abstract=2433584
Van den Eynde, L. (2013). An empirical look at the Amicus Curiae practice of human rights NGOs before the European Court of Human Rights. Netherlands Quarterly of Human Rights, 31(3), 271–313. Retrieved April 5, 2019, from https://ssrn.com/abstract=2350825
Viljoen, F., & Abebe, A. (2014). Amicus Curiae participation before regional human rights bodies in Africa. Journal of African Law, 58(1), 22–44. https://doi.org/10.1017/S0021855314000023
Voeten, E. (2007). The politics of international judicial appointments: Evidence from the European Court of Human Rights. International Organization, 61(4), 669–701. https://doi.org/10.1017/S0020818307070233
Voeten, E. (2011). International judicial independence. Retrieved April 5, 2019, from https://ssrn.com/abstract=1936132 or https://doi.org/10.2139/ssrn.1936132
Von Bogdandy, A. (2013). The democratic legitimacy of international courts: A conceptual framework. Retrieved April 5, 2019, from http://www7.tau.ac.il/ojs/index.php/til/article/viewFile/138/115
Weiner, A. S. (2013). Prudent politics: The International Criminal Court, international relations, and prosecutorial independence. Retrieved April 5, 2019, from https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1452&context=law_globalstudies
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Cardamone, D. (2019). Independence of International Courts. In: Pinto de Albuquerque, P., Wojtyczek, K. (eds) Judicial Power in a Globalized World. Springer, Cham. https://doi.org/10.1007/978-3-030-20744-1_6
Download citation
DOI: https://doi.org/10.1007/978-3-030-20744-1_6
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-20743-4
Online ISBN: 978-3-030-20744-1
eBook Packages: Law and CriminologyLaw and Criminology (R0)