Research Handbook on International Courts and Tribunals
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Research Handbook on International Courts and Tribunals

Edited by William A. Schabas and Shannonbrooke Murphy

This collection takes a thematic and interpretive, system-wide and inter-jurisdictional comparative approach to the debates and controversies related to the growth of international courts and tribunals. By providing a synthetic overview and critical analysis of these developments from a variety of perspectives, it both contextualizes and stimulates future research and practice in this rapidly developing field.
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Chapter 13: Regulation of the international bench

Tom Dannenbaum

Abstract

A code of judicial ethics must address plausibly the key threats to the relevant judges’ impartiality, independence and integrity. A code that does so on the subjective level bolsters the rule of law. A code that does so on the objective level enhances the rule of law. Efforts towards an ethics for the international bench fall short because they are weak on three key threats peculiar to international judging: perceived judicial nationalism, state power and normative diversity. First, nationality limits and ad hoc judges aggravate the appearance of national partiality, strengthen states’ incentives to influence ‘their’ judge, and distort judges’ understanding of their role, thus exacerbating the very dangers they are supposed to nullify. Second, worries about generating state buy-in underpin a lack of resistance to state control over judicial appointments. Yet, international courts’ primary advantage over arbitration in appealing to states is precisely the independent, judicial character that is sacrificed when states retain such great authority over appointments. Third, the challenges associated with diverse global expectations regarding the judicial role are left unaddressed by minimal and vague codes that provide little in the way of actionable ethical guidance. Four achievable reforms would counteract these failings: eliminating nationality rules; granting former international judges global permanent residency rights; delegating judicial appointments to an independent body; and providing greater specificity on the deliberative process, through continuing ethical education and empowered professional judicial organizations. KEYWORDS: judicial ethics; international courts; judicial impartiality; judicial independence; Burgh House Principles; judging

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