The independence of international courts : the adherence of the international judiciary to a fundamental value of the administration of justice / Dominik Zimmermann.
2014
KZ6250 .Z56 2014 (Map It)
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Details
Title
The independence of international courts : the adherence of the international judiciary to a fundamental value of the administration of justice / Dominik Zimmermann.
Published
Baden-Baden : Nomos ; [Oxford, England] : Hart Publishing, 2014.
Call Number
KZ6250 .Z56 2014
Edition
1. edition.
ISBN
9783848712489 (Nomos)
3848712482 (Nomos)
9781849467414 (Hart)
1849467412 (Hart)
3848712482 (Nomos)
9781849467414 (Hart)
1849467412 (Hart)
Language Note
Summary in German.
Description
597 pages ; 23 cm.
System Control No.
(OCoLC)893709097
Note
Originally presented as the author's thesis (doctoral)--Universität Heidelberg, Juristische Fakultät, 2013.
Bibliography, etc. Note
Includes bibliographical references (pages 539-597).
Record Appears in
Table of Contents
Overview
13
List of Abbreviations
29
ch. A
Introduction
33
I.
Introduction to the Research Theme
33
II.
Motivation for the Research
39
III.
Outline of the Research and Methodology
42
IV.
Focal Questions
45
ch. B
The Notion of Judicial Independence [—] The Analytical Framework
47
I.
Introduction
47
II.
The Usefulness of Legal Definitions
47
III.
Textual Approach [—] What do We Mean by Judicial Independence?
49
1.
The Protected Apparatus [—] The Subject of Independence
49
2.
The Attribute of Independence
51
IV.
Substantive Approach [—] Theoretical Justification and Concretization
55
1.
Preliminary Reflections
55
2.
Origin of the Concept of Judicial Independence [—] A Practical Example
56
3.
Separation of Powers and Independence of the Judiciary
61
a.
Historical and Philosophical Context
61
b.
The International Judiciary and the Trisection of Powers
65
4.
The Rule of Law and the Independence of the International Judiciary
68
5.
Judicial Independence: Meaning and Elements
71
a.
The Rejection of the Notion's Absoluteness
71
b.
Modes of Exercising Influence
73
c.
Institutional v. Individual Independence
75
d.
The Source of Intervention [—] (In-)Dependence from Whom?
77
1.
The Ideal Judge is Impartial
78
2.
Non-Involvement [—] Independence from the Parties
81
3.
Political Insularity [—] Influence Exerted by States and Other Political Actors
82
4.
Judicial Insularity [—] Independence Within the Judiciary
84
5.
Social Liberty [—] Independence Vis-à-Vis Social Actors
86
6.
Inner Sovereignty [—] Personal Suitability for Judicial Office
86
V.
Summary
87
ch. C
The International Judiciary [—] Defining the Object of Investigation
89
I.
Introduction
89
II.
Judicial Independence in its Historical Context [—] From Ad Hoc Arbitration to Compulsory Jurisdiction
89
1.
Early Development of Third Party Adjudication
89
2.
From the Permanent Court of Arbitration to the End of the World Wars
92
3.
The Post-World War and Cold War Period
97
4.
The Trend Towards Compulsory Jurisdiction
100
III.
Why does Independence Matter?
102
IV.
The Basis for a Systematic Approach [—] Defining International Courts and Tribunals
111
1.
Court or Tribunal?
111
2.
Elements of a Substantive Definition
113
a.
The Permanence Criterion
114
b.
Adjudication of International Disputes
116
c.
Application of International Law
117
d.
Pre-Determined Rules of Procedure
118
e.
The Binding Character of Judicial Decisions
119
V.
Summary
121
ch. D
Judicial Independence in the International Court of Justice
124
I.
Introduction
124
II.
Genesis and Organizational Setting of the ICJ
125
1.
The Prototype of the PCIJ's Organizational Ties
125
2.
The Organizational Contextualization of the ICJ
130
3.
Conclusions
134
III.
The Functions Served by the ICJ
135
1.
The Function of Dispute Settlement [—] The Dispute Settlement Mandate Rooted in the UNC
135
2.
Contributing to the Development of International Law
138
a.
The Power of the ICJ to Interpret International Law
138
b.
Factors Influencing the Development of International Law through Adjudication
141
3.
Subsidiary Functions
142
4.
Conclusions
144
IV.
The Notion of Judicial Independence in the Statute of the ICJ
144
1.
Drafting Background of the Inclusion in Art. 2 ICJ Statute
144
2.
Basic Contents and Function of Art. 2 ICJ Statute
145
3.
The Temporal Reach of the Requirement of Judicial Independence
148
4.
The Distinction between Independence and Impartiality
150
V.
Structural Independence
152
1.
Issues Regarding the ICJ's Relationship Vis-A-Vis States
152
2.
The Composition of the Court
153
a.
The Normative Framework of the Nomination and Election Procedure
153
b.
National Groups of the PCA as the Nominating Bodies
154
c.
Politicization of the Election Process: a Legacy from the PCIJ
159
d.
The Special Problem of Ad Hoc Judges
163
1.
Ad Hoc Judges at the ICJ [—] Normative Framework and Rationale
163
2.
Ad Hoc Judges and Independence [—] An Attempt to Harmonize Two Conflicting Concepts
166
3.
Financing the ICJ
169
VI.
Personal Independence
171
1.
The Pre-Electoral Requirements of Integrity and Qualification
171
a.
High Moral Character
171
b.
The Required Competence
173
2.
Tenure and Security of Tenure
176
a.
Length of Office and the Possibility of Re-Election
176
b.
Removal from Office
179
3.
Remuneration
182
a.
Considerations Influencing the Level of Salary
182
b.
The Importance of Equality [—] The Impact of UNGA Resolution 61/262
183
c.
The Assessment of the ICJ
188
d.
Appraisal
189
4.
Privileges and Immunities
191
a.
The Normative Framework
191
b.
Does Art. 19 ICJ Statute Provide the Necessary Protection?
194
c.
The Waiver of Immunities
197
5.
Incompatible Activities
198
a.
Simultaneous Side Activities and Prior Involvement-The Legal Framework
198
b.
Incompatible Activities in the Practice of the ICJ as Threats to Independence
199
c.
Assessing Prior Involvement in a Case [—] The Application of Art. 17(2) ICJ Statute
204
1.
The Order on the Composition of the ICJ in the Case of Legal Consequences of a Wall in the Occupied Palestinian Territory [—] Facts of the Case
204
2.
The Majority's Order
205
3.
The Dissenting Opinion of Judge Buergenthal
206
4.
Assessment [—] Formalism versus Judicial Policy in the Interest of Impartial Administration of Justice
207
VII.
Conclusions
208
ch. E
Judicial Independence in the International Tribunal for the Law of the Sea
212
I.
Introduction
212
II.
Genesis and Organizational Setting of the ITLOS
214
1.
The First and Second UN Conferences on the Law of the Sea (1958 and 1960)
214
2.
The Third UN Conference on the Law of the Sea (1973-1982)
215
3.
The Rationale Underlying the ITLOS
218
4.
Conclusions
220
III.
The Functions Served by the ITLOS
221
1.
The Mandate of Dispute Settlement as the Main Function of the ITLOS
221
2.
The Auxiliary Task of Enforcing Environmental Concerns
224
3.
The Emergency Powers of the ITLOS
226
4.
Conclusions
228
IV.
Structural Independence
229
1.
The Relationship with other Organs Established under UNCLOS [—] the ITLOS and the ISA
229
2.
A Court Within the Court [—] The Special Status of the Seabed Disputes Chamber
231
3.
The ITLOS as Part of an Independent Treaty Regime [—]Consequences for its Self-Conception as an Independent Tribunal
235
4.
The Composition of the Tribunal
238
a.
The Elected Members of the Tribunal
238
b.
The Nomination and Election Procedure [—] Normative Framework and Practical Implementation
242
1.
The Required Qualifications of Judges
242
2.
The Procedure for the Making of Nominations [—] The Discretion of States
243
3.
The Election of Judges [—] Regulating the Influence of States on the Composition of the ITLOS
246
4.
The Selection Process in Practice Thus Far
250
5.
Conclusions
255
c.
The Role of Ad Hoc Judges at the ITLOS
256
1.
The Legal Framework
256
2.
The Particularities of Ad Hoc Judges at the ITLOS
257
d.
The Use of Scientific and Technical Experts
261
5.
Financing the Tribunal
264
V.
Personal Independence
268
1.
The Pre-Electoral Requirements of Integrity and Qualification
268
2.
Tenure and Security of Tenure
270
3.
Remuneration
272
4.
Immunities and Privileges
275
5.
Incompatible Activities
277
VI.
Conclusions
281
ch. F
Judicial Independence in the International Criminal Court
284
I.
Introduction
284
II.
Genesis and Organizational Setting of the ICC
285
1.
Early Beginnings and the Hurdle of State Interests
285
2.
The Rome Conference
289
III.
The Functions Served by the ICC
292
1.
On the Need for a Permanent International Criminal Jurisdiction
293
2.
The Fight against Impunity as the Core Function of the ICC
294
3.
The Contribution to the Preservation of Peace
296
4.
Conclusions
297
IV.
Structural Independence
298
1.
The Legal Nature of the ICC
298
a.
The ICC as a Subject of International Law
299
b.
The Question of Objective International Personality
301
c.
The Role of the Prosecutor
303
1.
Distinguishing Between the Court and the Office of the Prosecutor?
303
2.
Does the Independent Prosecutor Enhance the Court's Independence?
307
d.
Summary
308
2.
The Composition of the Court
309
a.
The Required Qualifications of Judges
309
b.
The Two Procedures for Making Nominations
311
c.
The Advisory Committee on Nominations [—] Real Defence of Judicial Independence or a Paper Tiger?
313
d.
The Election Procedure
317
e.
The Administrative Functions of the Presidency of the ICC
319
3.
Financing the Court
321
a.
Outline of the System of Financing
321
b.
Funds Provided by the UN [—] The Example of the Darfur Referral
323
c.
Voluntary Contributions as a Means of Influencing the Court's Activities?
324
d.
Appraisal of the System of Financing
327
V.
Personal Independence
328
1.
Tenure and Security of Tenure
328
a.
Can Non-Renewable Terms Strengthen Judges' Independence?
328
b.
Removal from Office
330
2.
Incompatible Activities [—] Inclusion of the Appearance as a Criterion
334
3.
Excusing and Disqualification
337
4.
Disciplinary Measures
338
VI.
Conclusions
340
ch. G
Judicial Independence in the Ad Hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda
343
I.
Introduction
343
II.
Genesis and Organizational Setting of the ICTY and ICTR
344
1.
The Establishment of the ICTY
344
2.
The Establishment of the ICTR
348
3.
Conclusions
351
III.
The Functions Served by the ICTY and ICTR
352
1.
Conviction and Punishment of Individuals for Criminal Responsibility
352
2.
Restoring and Maintaining International Peace and Security
355
3.
Ancillary Functions
357
a.
Deterring Future Crimes [—] Ad Hoc Prosecution Taken Serious
357
b.
Reconciliation [—] The Value of Independently Establishing the Truth
358
c.
The Role of Victims
361
4.
Summary
362
IV.
Structural Independence
363
1.
The Legal Framework of the Establishment of the Ad Hoc Tribunals and its Relevance for the Tribunals' Independence
363
a.
The Relationship Between the UNSC and the Tribunals Due to the Latter's Classification as Subsidiary Organs
364
1.
The Legal Framework Governing Subsidiary Organs
364
2.
The Relationship Between Principal and Subsidiary Organs [—] Issues of Definition
366
3.
Features Prescribing Structural Independence Following from the Classification of the Ad Hoc Tribunals as Subsidiary Organs
367
4.
Conclusions
372
b.
Limits to the Exercise of Powers under Chapter VII UNC
373
1.
Generally on Limits to the UNSC's Powers Under Chapter VII UNC
373
2.
The Right to be Judged by an Independent Tribunal as a Human Right
374
3.
Judicial Independence as a Non-Derogable Right?
375
i.
Non-Derogability of the Right to Judicial Independence in the ICCPR
375
ii.
Non-Derogability of the Right to Judicial Independence in the ECHR
378
iii.
Non-Derogability of the Right to Judicial Independence in the ACHR
379
iv.
Non-Derogability of the Right to Judicial Independence in the Arab Charter on Human Rights and the African Charter on Human and Peoples' Rights
380
v.
The Right to be Judged by an Independent Tribunal as a Peremptory Norm?
381
4.
Conclusions
383
2.
The Composition of the Tribunals
383
a.
The Organs of the Tribunals
383
b.
Election and Nomination of the Judges
385
1.
The Legal Framework for the Selection of Permanent Judges
385
2.
The Practice of not Appointing to the Bench Nationals of the Parties to the Underlying Conflict
389
3.
The Determination of the Composition and Structure of the Chambers by the UNSC
390
c.
Appointment of the Registry and of Registry Staff
392
3.
Financing the Ad Hoc Tribunals
395
V.
Personal Independence
396
1.
Tenure and Security of Tenure
396
a.
The Short Tenure of ICTY and ICTR Judges
396
b.
The Ad Hoc Extension of Tenure by the UNSC [—] Exercise of Administrative Authority or Violation of the Tribunals' Independence?
399
c.
Removal from Office
402
d.
Excursus: Removal from Office at the SCSL
406
2.
Remuneration
408
3.
Recusal and Disqualification [—] The Tribunals' Standard of Impartiality
409
a.
The Legal Framework for Disqualification
409
b.
The Test of Impartiality Developed by the ICTY [—] Factual Background of Prosecutor v. Furundija
410
c.
The Submissions of the Appellant and the Respondent
411
d.
The Appraisal by the Appeals Chamber
414
e.
Appraisal of the Standard Developed by the Appeals Chamber
418
4.
Incompatible Activities
420
5.
Privileges and Immunities of the Judges
422
VI.
Conclusions
422
ch. H
Judicial Independence in the European Court of Human Rights
425
I.
Introduction
425
II.
Genesis and Organizational Setting of the ECtHR
426
1.
Adoption of the ECHR and the Vision of a Regional Human Rights Court
426
2.
Initial Steps [—] From a Two-Tiered Control Mechanism to a Single Court
430
3.
The Restructuring of the Control Machinery Through Protocol No. 11
433
4.
Functioning of the New Court and the Need for Further Changes
436
5.
Conclusions
438
III.
The Functions Served by the ECtHR
439
1.
The ECtHR as a Guardian of Human Rights
439
2.
The Quasi-Constitutional Character of the ECtHR
441
IV.
Structural Independence
443
1.
The Status of the ECtHR
443
a.
The Legal Capacity of the ECtHR
444
b.
The Status of the ECtHR Vis-A-Vis the CoE
447
c.
Conclusions
449
2.
Administration of the ECtHR
450
a.
Appointment of Registry Staff[—] Definition of a Problem
450
b.
The Normative Framework [—] The Procedure for the Appointment of Registry Staff
451
c.
The Special Case of the Registrar
454
d.
Considerations on Registry Staff Being Answerable to the Secretary General of the CoE
456
e.
Assessment
457
f.
Excursus: The Status and Administration of the Inter-American Court of Human Rights
458
1.
The Inter-American Court of Human Rights and its Status in the Inter-American Human Rights Protection System
458
2.
The Responsibility for Court Administration [—] In Particular Appointment of Administrative Staff
460
3.
The Composition of the ECtHR
461
a.
Legal Framework and Introduction to the Selection Procedure
461
b.
The Nomination of Candidates [—] The Domaine Reserve of States?
463
c.
Inadequacies in the Nomination Process and Their Relevance for Independence
468
d.
Nomination by Contracting States [—] A Practical Example
469
e.
Election of the Judges by the PACE
471
4.
Distribution of Cases
473
5.
The Institution of National Judge and Ad Hoc Judge
476
a.
Normative Framework and Rationale
476
b.
Safeguards for the Independence of Ad Hoc Judges
478
c.
The Voting Behaviour of Ad Hoc Judges [—] Evidence of (In-) Dependence?
481
d.
Conclusions
484
6.
The Single-Judge Formation [—] Increasing the Court's Efficiency at the Expense of Independent Decision-Making?
484
7.
Financing the ECtHR
488
a.
The Court's Budget as Part of the Ordinary Budget of the CoE
488
b.
The Lack of the Court's Influence on the Process of Adopting the Budget
490
c.
Assessment of the System for Financing of the ECtHR
492
V.
Personal Independence
492
1.
Required Qualifications of Judges
492
2.
Tenure and Security of Tenure
494
a.
Duration of the Term of Office [—] The Length of Office and the Need for Re-Election
494
b.
A Fixed Retirement Age [—] Is it Necessary and What are the Advantages?
497
c.
Security of Tenure [—] Removal of Judges
498
d.
Assessment of the Tenure System of the ECtHR
500
3.
Incompatible Activities
503
4.
Inability to Sit, Withdrawal or Exemption
506
5.
Privileges and Immunities
508
VI.
Conclusions
509
ch. I
Summary of Conclusions and Outlook
512
I.
The Need for an Independent International Judiciary [—] Balancing Independence and Courts' Political Nature
512
II.
Contents and Deficits of a Common Core of Judicial Independence
513
1.
Structural Safeguards
513
2.
Personal Independence
516
III.
The Prospects of an Independent International Judiciary
520
Annex: Ad Hoc Judges of the ICJ
523
Appendix: International Courts [—] A Chart
525
Zusammenfassung: Die Unabhängigkeit internationaler Gerichte - Die Einhaltung eines grundsätzlichen Werts der Rechtspflege durch die internationale Judikative
531
I.
Problemstellung and Aktualität der Fragestellung
531
II.
Untersuchungsgegenstand
533
III.
Gang der Untersuchung
533
IV.
Ergebnis
534
Bibliography
539
I.
Monographs
539
II.
Articles
549
III.
Treaties, Conventions and Other Legal Instruments
566
IV.
Table of Cases
588
1.
International Courts and Human Rights Bodies
588
2.
Arbitration Awards
593
3.
National Courts
593
V.
Press
593
VI.
Other Sources
594