Ethics / Independence
ILA Study Group
spawned by PICT
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The number and role of international courts and tribunals has grown significantly in recent years. The intensification of the trend of globalization and the attendant rise in the density of international relationships, and the institutions that govern them, has focused attention more closely than ever on the structure and function of those institutions. Calls for legitimacy and accountability, of which judicial independence is a large part, gain a certain urgency as international courts and tribunals are accorded an increasingly important role in a climate of eroding sovereignty and increasing international regulation.
To date, however, very little attention has been given to the meaning and application of the concepts of “independence” and “impartiality” in the international judicial context, and there has been no comprehensive, systematic exploration of the promotion and maintenance of independence in the international judiciary.
The question of the independence of the international judiciary has been difficult to schematize for the same reason that international law has always resisted ambitious theoreticians: lacking a legislature and an executive, concepts developed in the domestic context cannot necessarily be imported into the international legal system. The emergence of an international judiciary has its own dynamic and rationale, and special circumstances. In that regard, perhaps the most significant difference between international and domestic systems, in the present context, is the important role of States in the functioning of international judicial processes.
Through the electoral and other processes associated with appointments of international judges control over budget and, sometimes, over staffing, States have an important influence over much of the machinery of international justice. And, of course, many international judges are themselves drawn from national civil services. Furthermore, judges in international courts often have to contend with the constraints placed upon the exercise of their power by the instruments that both constitute the courts and bind them closely to a political organ.
Under the umbrella field of “Ethics, Conduct and Independence of the International Judiciary,” PICT has developed several activities, including sponsoring the establishment of a Study Group of the International Law Association, promoting debate of candidatures of judges (particularly of the ICC), and holding a conference on this specific topic (Florence 2002). To foster transparency and debate, PICT also displays the curricula vitae of the various judges on its website, whenever available.