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.