Measuring judicial independence in international law
| Published date | 01 August 2017 |
| DOI | 10.1177/1023263X17723766 |
| Date | 01 August 2017 |
| Author | Georgios Dimitropoulos |
| Subject Matter | Articles |
Article
Measuring judicial independence
in international law: Putting
together the pieces of the puzzle
Georgios Dimitropoulos*
Abstract
This article searches for paths, frameworks and modules for the measurement and evaluation of
judicial independence in international law. First, it discusses the measurability of the concept.
Judicial independence, both as such and especially at the international level, is very difficult to
measure, given the ambivalence of some proxies and variables that have been used in empirical
research in order to measure it, and given the competing interests and actors in international
adjudication: independence does not stand alone as the only value that needs to be protected in
international adjudication. Second, the article presents methodologies for the evaluation of
international judicial independence. The three competing methodologies are (i) the subjective,
which looks at the subjective perception of the judges themselves or the public; (ii) the output-
based, which looks at the decisions of the courts and tribunals; and (iii) the institutional, which
looks at the personal independence guarantees of the judge, and the organizational safeguards of
independence. Finally, this article presents its preferred model for the measurement of interna-
tional judicial independence. The study takes an institutional-psychological approach that focuses
on the judge and the individual institutions.
Keywords
appointment process, culture of independence, institutional-psychological model, measurement
methodologies, policy field
*Dr. iur., LL.M. (Heidelberg), LL.M. (Yale), LL.B. (Athens); Assistant Professor, HBKU Law School.
Corresponding author:
Georgios Dimitropoulos, HBKU Law School, Doha, Qatar.
Email: gdimitropoulos@hbku.edu
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(4) 531–551
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17723766
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1. Introduction
In a similar manner to domestic law, the issue of judicial independence has attracted a great deal of
interest in international law.
1
There are important similarities between domestic and international
judges; the same applies to the criteria for the assessment of their independence.
2
Nonetheless,
there is one significant difference which is a peculiarity of international courts and tribunals – like
the International Court of Justice (ICJ), the International Criminal Court (ICC), the World Trade
Organization Appellate Body (WTO AB), the Court of Justice of the European Union (CJEU) and
the European Court of Human Rights (ECtHR): that is, the nationality of international judges. For
this reason, the influence of the so-called ‘home state bias’ plays an important role in the study of
international courts and tribunals.
3
This article searches for paths, frameworks and modules for the
measurement and evaluation of judicial independence of international courts beyond the home
state bias that will be able, simultaneously, to account for the role of the law in assessing the
independence of international courts.
Judicial independence is difficultto define and measure, given the ambivalenceof some variables
and proxiesthat have been used in legal and empirical research to measureit, and secondly, given the
existence of competing values, interests and actors in international adjudication: independence does
not exist as theonly value that needs to be protectedin international adjudication. Further valueslike
the attractiveness of the international regime,case-sensitivity of international judgesand the account-
ability of international courts maydeserve equal protection. The different and sometimescontrasting
elements of judicial independenceconstitute the puzzle of the concept; in the sense thatthe puzzle is
composed of several smaller parts that need to be sorted out and put in the right order to obtain the
complete picture; but also of a mental puzzle that is difficult to understand or explain.
The three prevalent methodologies that have been developed for the measurement and evalua-
tion of judicial independence are (i) the subjective, which looks at the subjective perception of the
judges themselves or the public;
4
(ii) the output-based, which looks at the decisions of the courts
and tribunals, the results, the voting patterns and their implementation;
5
and (iii) the institutional,
1. See, for example, L.E. Petteti, ‘Independence of International Judges’, in S. Shetreet and J. Deschenes (eds.), Judicial
Independence: the Contemporary Debate (Springer, 1985), p. 496-500; S. Charnovitz, ‘Judicial Independence in The
World Trade Organization’, in L. Boisson de Chazournes, C.P.R. Romano and R. Mackenzie (eds.), International
Organizations and International Dispute Settlement: Trends and Perspectives (Brill, 2002), p. 219-240; R. Mackenzie
and P. Sands, ‘International Courts and Tribunals and the Independence of the International Judge’, 44 Harvard
International Law Journal (2003), p. 271-285; E.A. Posner and J.C. Yoo, ‘Judicial Independence in International
Tribunals’, 93 California Law Review (2005), p. 1-74; T. Meron, ‘Judicial Independence And Impartiality in Interna-
tional Criminal Tribunals’, 99 American Journal of International Law (2005), p. 359-369; H. Ruiz Fabri and J.-M. Sorel,
Inde
´pendance et Impartialite
´des Juges Internationaux (Pedone, 2010); E. Benvenisti and G.W. Downs, ‘Prospects for
the Increased Independence of International Tribunals’, 12 German Law Journal (2011), p. 1057-1081; E. Voeten,
‘International Judicial Independence’, in J.L. Dunoff and M.-A. Pollack (eds.), Interdisciplinary Perspectives on
International Law and International Relations: The State of the Art (Cambridge University Press, 2013), p. 421-444.
2. For the purposes of this article, international tribunals are treated as international courts, and international arbitrators are
treated as international judges. The term ‘international court’ is used interchangeably with the term ‘international
(dispute resolution) forum’.
3. See, for example, J.K. Staton and W.H. Moore, ‘Judicial Power in Domestic and International Politics’, 65 International
Organization (2011), p. 553-587; E. Voeten, ‘The Impartiality of International Judges: Evidence from the European
Court of Human Rights’, 102 American Political Science Review (2008), p. 417-433.
4. See, Section 3.A.1. below.
5. See, Section 3.A.2. below.
532 Maastricht Journal of European and Comparative Law 24(4)
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