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The Judicial Self-Government at the International Level — A New Research Agenda

Published online by Cambridge University Press:  06 March 2019

Nino Tsereteli  and
Hubert Smekal

Abstract

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The phenomenon of judicial self-government at international courts has thus far been vastly understudied. Our article fills this gap and systematically explores its personal dimension, both from formal and informal perspectives. Specifically, we focus on the selection, promotion, and removal of international judges. We build our analysis on studying legal instruments, such as constitutive treaties, statutes, and rules of procedure, which we subsequently supplement by anecdotal evidence of how they work in practice. We show that each international court is unique in terms of the forms and extent of participation of its judges in deciding on international judicial careers. There is a variation as regards the forms and degree of judicial self-government across international courts and across the relevant areas of decision-making for each court. However, some broader patterns and trends emerge from our examination of relevant provisions and practices. First, some courts display consistently low degrees of judicial self-government across all these areas of decision-making, while other courts display relatively higher degrees. Second, judicial self-government does not manifest itself at the international level in entirely the same way as it does at the national level. We found that while judicial self-government manifests itself relatively strongly in the areas of promotions and removals of international judges, it is limited in the area of selection of international judges. International courts are not, strictly speaking, self-governing in the latter area, because the sitting judges of these courts are rarely members of the bodies that decide or advise on selecting new judges. However, sitting judges of some international courts have become involved in the formation of the bodies screening candidates and/or in selecting the members of such bodies. Hence, judicial self-government has started manifesting itself in selection processes internationally, albeit in a limited fashion, with only indirect involvement of sitting international judges.

Type
Articles
Information
German Law Journal , Volume 19 , Issue 7: Special issue — Judicial Self-Government in Europe , 01 December 2018 , pp. 2137 - 2164
Copyright
Copyright © 2018 by German Law Journal GbR 

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132 The ECtHR, the CJEU, the EFTA Court.Google Scholar

133 The ICC, the IACtHR.Google Scholar

134 The Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community.Google Scholar

135 The Court of Justice of the Common Market for Eastern and Southern Africa; the East African Court of Justice.Google Scholar

136 Cali and Cunningham in this issue label JSG in this area as “constrained”.Google Scholar

137 The CCJ is a rare exception since its President is the Chairperson of the selection commission.Google Scholar

138 It can be inferred from the limited presence of sitting judges that the screening bodies were clearly not modelled on judge-dominated national judicial councils. However, scholars have argued that states that established some form of judicial councils at the national level may be more inclined to accept de-politicization and judicialization of selection processes at the international level. Malleson, supra note 12.Google Scholar

139 There is a direct reference to the CJEU panel in Judge Costa's letter to the member states’ ambassadors, in which he proposed the establishment of the ECtHR panel. See Doc. 12391 6 October 2010, National procedures for the selection of candidates for the European Court of Human Rights; Committee on Legal Affairs and Human Rights Rapporteur: Ms Renate WOHLWEND, Liechtenstein, Group of the European People's Party.Google Scholar

140 Follesdal, Andreas, Independent yet accountable: Stress test lessons for the European Court of Human Rights, 24 Maastricht J. Eur. Comp. Law 484-510, 507 (2017) (pointing out that while “democratic states must have enough influence in the selection process to ensure indirect democratic accountability,” “democratic control is problematic insofar as it reduces the credibility of the ECtHR's independence”); Engel, supra note 44 at 453 (pointing out that democratic legitimation through the Parliamentary Assembly is “no reliable guarantee of the candidates’ professional quality.”).Google Scholar

141 One study showed that the quality of judges is one of the major concerns (Başak Çalı, Anne Koch & Nicola Bruch, The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights, 35 Hum. Rights Q. 955, 967–968 (2013)).Google Scholar

142 One recent study on delegation to independent regulatory agencies in the field of competition found that formal independence (whose many elements overlap with self-government) boost regulatory quality, while the formal political accountability does not have the same effect, see Koop, Christel & Hanretty, Chris, Political Independence, Accountability, and the Quality of Regulatory Decision-Making, 51 Comp. Polit. Stud. 38–75 (2018).Google Scholar

143 Compare Weiler's version of exit (J. H. H. Weiler, The Transformation of Europe, 100 Yale Law J. 2403,2423 (1991)).Google Scholar

144 Paul Mahoney has viewed the introduction of an element of independent assessment of the eligibility and suitability of candidates at both national and international levels as an independence-enhancing measure. Mahoney, supra note 13 at 423.Google Scholar

145 For the definition of decisional independence, see Popova, Maria, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine 18 (2012).Google Scholar

146 The Art. 255 Panel had already issued several negative opinions of CJEU candidates which nominating states respected, and many states even strengthened the procedural guarantees of screening candidates at the national level (Dumbrovský et al., supra note 21), however, it has not prevented them from repeatedly proposing candidates found later unsuitable by the Panel again (see Slovakia which recently received a negative opinion by the Art. 255 Panel on three candidates for the EU General Court in a row).Google Scholar

147 See detailed instructions on what kind of candidates they expect in the Activity Reports of the ECtHR Advisory Panel (https://www.coe.int/en/web/dlapil/advisory-panel) or the Art. 255 (CJEU) Panel (Panel Provided for by Article 255 of TFEU, Third Activity Report (2013), 17-21, https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-02/rapport-c-255-en.pdf).Google Scholar

148 Squatrito, Theresa, Resourcing Global Justice: The Resource Management Design of International Courts, 8 Glob. Policy 62–74 (2017).Google Scholar

149 Shany, supra note 1 at 84.Google Scholar

150 Under the ECHR, Art. 46 (2), the Committee of Ministers ‘shall supervise the execution’ of judgments. See for example, Fyrnys, Markus, Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights, 12 German L. J. 1231 (2011).Google Scholar

151 See for example, Huneeus, Alexandra, Courts Resisting Courts: Lessons from the Inter-American Court's Struggle to Enforce Human Rights, 44 Cornell Int'l L.J 494, 500–502 (2011).Google Scholar

152 Peers, Steve, Sanctions for Infringement of EU Law after the Treaty of Lisbon, 18 Eur. Public Law 33–64 (2012).Google Scholar