Project

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Open International Justice: The Transparency of International Courts and Tribunals

Applicant Peters Anne
Number 138427
Funding scheme Project funding (Div. I-III)
Research institution Juristische Fakultät Universität Basel
Institution of higher education University of Basel - BS
Main discipline Legal sciences
Start/End 01.11.2011 - 31.10.2013
Approved amount 105'103.00
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Keywords (5)

International Dispute Settlement; International Courts and Tribunals; Constitutionalization; Public trial; Confidentiality

Lay Summary (English)

Lead
Lay summary

Lay summary: Open International Justice – The Transparency of International Courts and Tribunals

In what has been famously labeled the “age of adjudication” in international law, states increasingly set up and refer disputes to international institutions which display structural features of (national) courts in lieu of dispute settlement mechanisms based on diplomacy and negotiation. This often positively hailed “judicialization” of international relations has brought in its train fresh debates on the functionality, the institutional hallmarks and procedural arrangements of international courts and tribunals. Furthermore, with an accretion of competences and powers in their favour, international courts and tribunals have become the subject of concerns regarding their accountability and legitimacy. Since international courts and tribunals are (albeit in the boundaries of their mandate) generally fettered with judicial independence, also from their state creators, their controllability is questioned.

An aspect which has been of great importance as a structural and functional principle to domestic judiciaries since the enlightenment and as a legitimizing factor alike is the concept of open justice or judicial transparency. Against the backdrop of the so-called “proliferation of international courts and tribunals”, international legal scholarship increasingly adopts comparative perspectives and devotes itself to overarching problems and aspects of International Courts and Tribunals instead of studying one tribunal monographically. Nonetheless, a systematic, overarching study on the functions and means of international judicial transparency lacks so far. The dissertation project aims to fill in this blank by studying transparency in its ambivalent functionality as means to ensure the operability of international courts and undergird their authority on the one hand and ameliorate their controllability on the other hand. This will encompass in-depth research on the functions and means of judicial transparency in its (1) institutional, (2) procedural, (3) decisional and (4) systemic dimension.

At the centre of the study will be a comparative analysis of the International Court of Justice (ICJ), the International Tribunal for the Law of the Seas (ITLOS), the WTO Dispute Settlement System (WTO DSB), the International Investment Tribunals (ICSID and NAFTA), the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights (IACHR), the Human Rights Committee (HRC), the International Criminal Court (ICC) and of certain tribunals based on the Permanent Court of Arbitration (PCA). The rules and practices of these institutions will be described and evaluated with the aim of carving out similar standards and approaches in regard of transparency or monitoring differences respectively. Ultimately, the question will be asked whether international law already comprises a hard-law norm to the effect that international courts and tribunals generally must be transparent and open to the public.

In addition to the “horizontal” comparison, the study will aim at a “vertical” juxtaposition of judicial transparency regimes on the domestic and on the international plane. The research question will be whether international courts must – as a consequence of a greater factual and conceptual distance to the individual –  employ additional or alternative strategies to “make themselves understood” by the individuals they eventually serve. Also, transparency mechanisms known from the domestic sphere may function differently on the international plane. A blatant example is the openness of hearings: Third-world beneficiaries of international criminal justice will often not have the chance to understand and much less attend a public hearing held, for examble, in Den Haag. Arguably this is one reason why international (criminal) courts – in stark contrast to a number of domestic courts – take a rather liberal stance on the admissibility of cameras in their courtrooms. Recording international proceedings allows for the creation of iconic visual material that is of universal comprehensibility, also in poverty-stricken and lowly-educated societies without a functioning press-system of their own.

The project is intended to be of interest to academics and practitioners in the field of international courts and tribunals alike. It will attempt to make a contribution to the better understanding of the functioning of international courts and tribunals and to encourage further debate on the subject. The results of the study shall be condensed into a set of standards on judicial transparency that may be easy to handle and communicate.

Direct link to Lay Summary Last update: 21.02.2013

Responsible applicant and co-applicants

Employees

Name Institute

Publications

Publication
Transparency in International Adjudication
Neumann Thore, Simma Bruno (2013), Transparency in International Adjudication, in Bianchi Andrea, Peters Anne (ed.), Cambridge University Press, Cambridge, 436-476.

Collaboration

Group / person Country
Types of collaboration
Prof. Dr. Geir Ulfstein Norway (Europe)
- Exchange of personnel
Prof. Dr. Andrea Bianchi Switzerland (Europe)
- Publication
- Exchange of personnel

Abstract

The proposed research project (dissertation written by Thore Neumann) is meant to explore transparency both as a procedural and structural principle in the primary interest of the functioning of international courts and tribunals and as an important source of (democratic) legitimacy. It ties in with two trends in international law: The growing number of international adjudicative bodies that display structural features of (national) courts and the widespread concerns for processes and means of (democratic) legitimacy of international institutions. Transparency plays a crucial role in both developments: On the one hand, it has constituted a fundamental principle in court-based adjudication in many domestic judiciaries since the enlightenment. On the other hand, transparency may ameliorate the controllability and comprehensibility of international courts and thus add to their legitimacy.At the centre of the study will be a comparative analysis of the International Court of Justice (ICJ), International Tribunal for the Law of the Seas (ITLOS), WTO Dispute Settlement System (WTO DSB), International Investment Tribunals (under ICSID and NAFTA), European Court of Human Rights (ECHR), Inter-American Court of Human Rights (IACHR), Human Rights Committee (HRC), the International Criminal Court (ICC) and of certain tribunals based on the Permanent Court of Arbitration (PCA) in regard of their rules and practises of transparency.The proposed study will explore international judicial transparency in its (1) institutional, (2) procedural, (3) decisional and (4) systemic dimension. Means to foster institutional transparency that will be analysed are information policies on the selection of judges, access to founding documents and rules of procedure, court archives, case law databases and proactive outreach campaigns (as practised by some tribunals).On the procedural plane, notification obligations (e.g. regarding the instituting of proceedings), the rules on open and oral hearings, the rules on the distribution, disclosure of and the access to court documents and party submissions and the openness/closedness of deliberations will form part of the study. As regards the decisional dimension of judicial transparency, the modalities of the publication of reasoned deci-sions, their contents and their structures will be analysed. Furthermore, the issuance of separate and dissenting opinions will be considered.In the systemic dimension, the modalities of information exchange between different courts and tribunals shall play a role. First, in order to clarify the de lege lata situation of judicial transparency on the international plane the transparency means will be identified as such, structured and categorized, described, explained and compared in respect of (a) their legal sources (e.g. rules of procedure, customary law, etc.), (b) their objects, (c) their prerequisites and legal consequences, (d) their beneficiaries and (e) the point of time of the furnishing of information. It is assumed that due to structural and practical differences, transparency concepts known from the domestic sphere (e.g. open hearings) function differently in international law. Second, the transparency means will be examined for interrelations and synergies in order to allow for a holistic assessment of the level of transparency of each tribunal included in the study. Propositions de lege ferenda shall be proffered. Third, generalizable structures and patterns that may lead to the possible distillation of a common principle or set of standards of judicial transparency on the international plane will be searched. Fourth, the findings will be placed into the context of existing models of (democratic) legitimacy currently discussed in respect of international courts and tribunals. It will be determined whether transparency is capable of compensating for existing (democratic) legitimatory deficits in international adjudication.
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