International courts differ from national courts in terms of the perception of their diversity. Factors that constitute the identity of adjudicators and are perceived as neutral at the domestic level, such as age, former profession and cultural background, are no longer considered neutral in an international court. Conversely, factors that are not seen as acceptable domestically, such as membership of a political party, may be acceptable for international judges. This paper scrutinizes the factors influencing the world views and personalities of judges and their effects on the judicial process as well as the extent to which the judiciary is perceived as trustworthy. The paper analyses international courts’ continuous battle with the fundamental balancing act of dispensing justice in a particular case while safeguarding the consistency of the system in its entirety. Finally, the paper examines factors that unify international courts despite, or perhaps even because of, their diversity.
In an effort to reconcile the tension between judicial independence and accountability, these principles have been presented as the two sides of the same coin. It is generally accepted that accountability also applies to ICs, but, as it will be shown, the instruments to hold judges accountable in that ambit are limited, given the specificities of the international sphere. In that regard, what constraints on ICs might be justified in terms of accountability without putting their independence at risk? In this paper, I will analyse three aspects regarding the accountability principle: 1) the standards for judicial conduct and the actors that can hold international judges to account, which tend to be set forth in the corresponding statutes of international judges and codes of conduct; 2) the requirement to “give reasons” for explicitly justify the adjudicative power, which is inherent to the judicial function; and 3) the principle of transparency as applied to the activity of ICs.
In 2011, Hilary Charlesworth affirmed that while feminist engagements in international law had successfully brought the language of women’s empowerment to the discipline, they had been less adept at committing to feminist methods and theory that give this language life on the ground. Ten years later, things have remained fairly unchanged. The literature on diversity and identity in international courts (ICs) is a case in point. This growing body of literature has criticized and proposed reforms to the white male and stale composition of ICs. However, there has been little engagement with its theoretical grounding and normative agendas. This paper explores what is consolidated and excluded by these works. Section 2 reconstructs this scholarly canon, its running threads and disciplinary impact. Section 3 critically examines its works’ theoretical underpinnings and its silenced and unanswered questions. Finally, section 4 explores ways for richer accounts on diversity and identity in ICs.
Questions of representation remain notably relegated in the scholarship on international courts and tribunals. To be sure, predominant attention has been given to formal issues of meritocracy (legal and linguistic proficiency) and geographic origin. The statutes of ICs also typically address the question of representation in these terms. Yet this approach hardly engages with rising challenges to the legitimacy of the international judiciary that point to the limited diversity of the bench in terms of gender, race, culture, class and other identity-related factors. The paper aims at rethinking representation in order to tackle those challenges. To this end, I will examine alternative (less state-centric) normative conceptions of representation and their significance for judicial independence, impartiality and accountability. The paper argues in favour of a diversity-sensitive approach that is able to strengthen both normative and sociological legitimacy of ICs.