Judicial Education and International Courts

Although conventional wisdom suggests that the best way to ensure judicial competence is through appropriate selection processes, recent research suggests that no selection method can ensure the long-term fitness of the judiciary. Instead, judicial education programs are necessary to provide judges with the multiple skills that constitute ‘judgecraft’. Unfortunately, judicial education at the international level is both rare and relatively unsophisticated, as compared to many domestic forms of judicial education. This chapter is the first to analyse judicial education of international judges. The discussion considers the various practical and theoretical problems associated with international judicial education and offers a number of suggestions regarding further academic inquiries and reform initiatives. In particular, the text considers whether self-regulation in this particular field is appropriate and whether any alternatives exist. In so doing, this chapter seeks to increase the real and perceived legitimacy of international adjudication.

Diversity and Legitimacy of the World Trade Organization’s Bench

This chapter sheds light on the relationship between the composition of the bench and the sociological legitimacy of the judicial branch of the World Trade Organization (WTO). Two identity characteristics are consistently part of the criticism of the WTO’s bench: the lack of female adjudicators as well as individuals with academic experience. Overall, however, the identity of the bench does not appear to matter greatly for how WTO Members evaluate its exercise of authority. We suggest that the role of the WTO’s Legal Affairs Division and the Appellate Body Secretariat in streamlining outcomes and procedures may best explain this, as it helps prevent such diversity from manifesting in dispute rulings. Alternatively, it tells us that judicial diversity matters more for the bench’s normative legitimacy—and for scholars—than it does for governments.

Adjudicating International Trade Cases in the World Trade Organization

The presence of women on WTO panels and the Appellate Body makes a difference from the perspective of institutional legitimacy. However, given the limited experience with women adjudicators on the WTO bench and the fact that WTO dispute reports are not signed individually but by all three adjudicators, it is impossible to prove whether women have made a difference by bringing a unique perspective to WTO adjudication. Nevertheless, it is possible to suppose that they would do so for two reasons. First, WTO Members believe that the individual perspective of an adjudicator can inform her or his decision-making, at least in the case of developing country adjudicators. Second, trade policy makers have come to realize that trade policies can affect women and men differently, and hence that developing trade policies requires a gender-based analysis. With this in mind, it is suggested that there is a gender-based approach to WTO adjudication.

Additional Opinions and Judicial Diversity at the International Court of Justice

Additional opinions—that is, dissenting opinions, separate opinions, and declarations—are, by definition, the primary institutional mechanism through which judges can express their individual views on a particular decision, as distinct from the judgment or decision proclaimed on behalf of the institution. Therefore, within the public sphere they are the principal institutional manifestation of the individual—and thus the individuality—of the judge. Consequently, for those who seek to understand the impact of certain personal characteristics upon how a judge discharges their professional functions and, in turn, the wider institutional and systemic implications of the participation of individuals bearing those characteristics, the study of additional opinions would seem a useful analytical enterprise. Using gender diversity at the International Court of Justice as a case study, the purpose of this chapter is twofold: first, to explain the relationship between diversity and additional opinions, and second, to explore the methodological potential, and challenges, that the study of additional opinions entails.

Legitimacy of Investor-State Arbitration

Due to insufficient concretization of international norms, it is of vital importance to have broadly representative international courts and tribunals. Since the end of the Cold War, the most significant divisions among States are those between developing and developed countries, whose economic and other interests differ greatly. In this context, any normative or social legitimacy debate inevitably has a development focus. For example, investment arbitration awards have been found to be correlated with arbitrators’ policy preferences whereby the development bias was most prominent. Moreover, the predominantly commercial background and outlook of investment arbitrators has resulted in expansionist trends in interpreting the jurisdictional and substantive protection provisions of the Bilateral Investment Treaties (BITs), undermining the legitimacy of the investment arbitration system. The recent North American Free Trade Agreement (NAFTA) reform reinforces the old perception that the institution of investment arbitration is predominantly designed to address north-south disputes.

African Women’s Paths to the International Bench

The lack of female judicial appointments in the history of international courts has led to the introduction of obligations and targets for nominating/appointing authorities to select and elect women candidates. Compliance with these obligations remains a challenge and the women who aspire to these offices must not only have the requisite qualifications, but also pass through the nomination and election processes, which can involve a high level of political manoeuvring. Mentoring, deliberate mobilization, and gatekeeping may also play a role. Other important elements that may affect a woman’s international judicial career include socio-economic factors, geo-cultural politics, the political will to nominate women, and a blend of contextual experiences, institutional opportunities, and personal agency. This chapter probes these dynamics, offering insights into the challenges and opportunities for women who seek careers on the international bench, focusing specifically on the unique experiences of female African judges in international and regional courts.

The Contribution of Female Judges to the Victim Jurisprudence of the International Criminal Court

This chapter argues that female judges at the International Criminal Court (ICC) have made significant meaningful contributions to the ICC jurisprudence on victim matters. They have interpreted and applied the ICC legal framework on victims, have fleshed out the contours and scope of normative provisions, and have faced substantive and procedural issues on victim-witness protection, victim participation and reparations at the ICC. This chapter uses international human rights as a standard to assess the legitimacy of ICC jurisprudence. The jurisprudence on defence rights has largely sought to strike a balance between defence and victim rights. However, some jurisprudence on victims (partially) construed by female judges prompts questions on whether respect for defence rights or other ICC goals may have been compromised. It is argued that all ICC judges, including female judges, should take distance from excessive pro-victim judicial activism to fully respect defence rights, and avoid victim frustration.

A Question of Impartiality

As part of the larger debate on the legitimacy of the international investment regime, our study of 117 dissents and 87 dissenting arbitrators finds no significant correlation between the nationality of the dissenters, their gender, or appointment by the investor or the State, and the number of dissents written. In the absence of data on the educational and professional backgrounds of all appointed arbitrators, our findings concerning education and the professional background are more tentative. Where we do see significant correlation, is between dissents and appointments by the losing party. Arbitrators appointed by the losing party dissented roughly three times more often than the other arbitrators did. The fact that most dissents are written by arbitrators appointed by the losing party creates the perception that some arbitrators act more like the advocates of their appointers instead of impartial adjudicators. We propose that a standing, two-tier investment court that provides for non-renewable, long-term appointments and fixed salaries could remedy the perceived partiality of party-appointed arbitrators and ensure the survival of dissents.

Generating Incentives to Appoint Women to the International Bench

Against the background of the diversity of international judicial institutions and of the criteria for the selection of judges, this chapter sketches recurrent common considerations in the practice of States as regards elections to the international bench. The observations are drawn from the perspective of a government representative who has been engaged in the international settlement of disputes. The exacting requirements of campaigning by States, in addition to the personal experience-based qualifications required of candidates, speak in favour of scrutiny of any early obstacles for the qualification of women to qualifying positions with international exposure. Gender-sensitiveness and mainstreaming are considered in relevant decision-making at domestic levels. The question is raised as to the importance of the practical choice of language in actual situations of national decision-making. In this regard, incentives for more appointments of women on the international bench may include not only arguments of fairness, but also of utility. Recalling basic premises expressed in agreed language at the international level as regards peace and security as well as sustainable development, may also promote dialogue to bridge cultural differences.

Judicial Legal Culture and Victim Procedural Status at the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia

This chapter examines the relationship between judicial legal culture and victim procedural practices at the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Starting with judicial composition, judges are categorized by their professional and educational backgrounds and legal cultures before assuming their STL/ECCC judicial positions: whether they originate from the common law/adversarial system, the civil law/inquisitorial system, or the ‘international’ system. The chapter then investigates connections between STL/ECCC practices concerning victim procedural status and the typical features of these legal cultures. Overall, it is argued that there is a direct relationship between the legal culture of judges and their judicial practices. The chapter explains how STL and ECCC judges have adapted several civil law/inquisitorial and common law/adversarial features to make victim procedural status fit the mandate and characteristics of the STL and ECCC, namely, the presence of sui generis international features.