¹ Shany, Yuval, No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary, 20 Eur. J. Int. Law 73–91 (2009); The Oxford handbook of international adjudication, (Romano, Cesare, Alter, Karen J., & Shany, Yuval eds., 2014); Alter, Karen J., The new terrain of international law: courts, politics, rights (2014).Google Scholar

² Von Bogdandy, Armin & Venzke, Ingo, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority, 26 Leiden J. Int. Law 49–72 (2013) (identifying three more functions beyond dispute settlement: the stabilization of normative expectations, law-making, and the control as well as legitimation of authority exercised by others); Yuval Shany, Assessing the effectiveness of international courts 37-45 (2014) (identifying four generic goals of ICs: norm support, dispute settlement, regime support and legitimizing public authority).Google Scholar

³ See Howse, Robert, Moving the WTO Forward - One Case at a Time, 42 Cornell Int'l L.J. 223 (2009) (focusing on the reorientation of international law toward the interests, values, and rights of persons and peoples, not just states, through the evolution of human rights law, the law of war, and humanitarian law).Google Scholar

⁴ Martinez, Jenny S., Towards an International Judicial System, 56 Stan L. Rev. 429, 439 (2003).Google Scholar

⁵ Terris, Daniel, Romano, Cesare & Swigart, Leigh, The international judge: an introduction to the men and women who decide the world's cases xix (2007).Google Scholar

⁶ Terris, Daniel, Romano, Cesare P. R. & Swigart, Leigh, Toward a Community of International Judges, 30 Loyola Los Angel. Int. Comp. Law Rev. 419–472 (2008); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int. Law J. 191 (2003).Google Scholar

⁷ Terris, Romano, and Swigart, supra note 6.Google Scholar

⁸ Burundi withdrew from the Rome Statute (see https://treaties.un.org/doc/Publication/CN/2016/CN.805.2016-Eng.pdf); Venezuela withdrew from the jurisdiction of the Inter-American Court of Human Rights (IACtHR).Google Scholar

⁹ Particularly, the attempts of the UK government at the Brighton Conference in 2012 and of the Danish government at the Copenhagen Conference in 2018 to advance initiatives weakening the Court. See Philip Leach & Alice Donald, A Wolf in Sheep's Clothing: Why the Draft Copenhagen Declaration Must be Rewritten, Feb. 21, 2018, https://www.ejiltalk.org/a-wolf-in-sheeps-clothing-why-the-draft-copenhagen-declaration-must-be-rewritten/.Google Scholar

¹⁰ Madsen, Mikael Rask, Cebulak, Pola & Wiebusch, Micha, Backlash against international courts: explaining the forms and patterns of resistance to international courts, 14 Int. J. Law Context 197–220 (2018).Google Scholar

¹¹ The selection of new judges has been viewed as a mechanism for controlling judges. Laurence Helfer and Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo 93 Cal. L. Rev 899 (2005). For a comment on the implications of the politicization of selection processes for the independence of ICs in general and on the US Government blocking the reappointment of a South Korean judge due to its disagreement with the decisions made by that judge, see Elsig, Manfred, Pollack, Mark & Shaffer, Gregory, The U.S. is causing a major controversy in the World Trade Organization. Here's what's happening., Washington Post, June 6, 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/06/06/the-u-s-is-trying-to-block-the-reappointment-of-a-wto-judge-here-are-3-things-to-know/).Google Scholar

¹² Concerning the selection of international judges, see Ruth Mackenzie et al., Selecting International Judges: Principle, Process, and Politics (2010); Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts, (Michal Bobek ed., 2015); Kate Malleson, Promoting Judicial Independence in the International Courts: Lessons from the Caribbean, 58 Int. Comp. Law Q. 671 (2009); De Baere et al. partially dealt with these issues, but their particular focus has been on the rule of law. See De Baere, Geert, Chann, Anna-Luise & Wouters, Jan, Assessing the Contribution of the International Judiciary to the Rule of Law: Elements of a Roadmap, SSRN Electron. J. (2015), http://www.ssrn.com/abstract=2704266.Google Scholar

¹³ Mahoney, Paul, The International Judiciary – Independence and Accountability, 7 Law Pract. Int. Courts Trib. 313–349 (2008); Başak Cali, Anne Koch & Nicole Bruch, The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights, 35 Hum. Rights Q. 955-984 (2013); Shany, supra note 2; Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts, supra note 12.Google Scholar

¹⁴ Dunoff, Jeffrey L. & Pollack, Mark A., The Judicial Trilemma, 111 Am. J. Int. Law 225–276 (2017).Google Scholar

¹⁵ Voeten, Erik, The Politics of International Judicial Appointments, 9 Chi. J. Int'l L. 387 (2008-x2009).Google Scholar

¹⁶ Even in case of one of the most studied ICs – the CJEU – the phenomenon of JSG remains “largely under-studied” (Alberto Alemanno & Laurent Pech, Thinking justice outside the docket: A critical assessment of the reform of the EU's court system, 54 Common Mark. Law Rev. 129, 130 (2017)).Google Scholar

¹⁷ Mahoney, supra note 13 at 342.Google Scholar

¹⁸ Selecting Europe's judges, supra note 12.Google Scholar

¹⁹ Mackenzie et al, supra note 12 at 5.Google Scholar

²⁰ Selecting Europe's judges, supra note 12 at 287. Sauvé has used the term in relation to the “Article 255 panel” (CJEU). See Jean-Marc, Sauvé, Selecting the European Union's Judges, The Practice of the Article 255 Panel, in Selecting Europe's judges, 84 (Michal Bobek ed., 2015).Google Scholar

²¹ Alemanno, Alberto, How Transparent is Transparent Enough? in Selecting Europe's Judges 202, 204 (Michal Bobek ed., 2015); See also Dumbrovský et al., Judicial appointments: The Article 255 TFEU Advisory Panel and selection procedures in the Member States, 51 Common Mark. Law Rev. 455-482 (2014) (noting that if the majority of the Panel members are chosen at the will of the Court of Justice's President, as has happened so far, one might foresee a subtle move into the direction of judicial self-government).Google Scholar

²² Our approach resembles the one taken by Squatrito (Theresa Squatrito, Conceptualizing, Measuring and Mapping the Formal Judicial Independence of International Courts, SSRN Electron. J. (2018), https://www.ssrn.com/abstract=3131557), since we also examine the relevant treaties, statutes and rules of procedures of selected ICs. However, our criteria for identifying the relevant formal provisions differ from hers. We are specifically concerned with the element of judicial participation, and its effects on a number of values, including but not limited to judicial independence. She focuses specifically on the rules, which she considers to be institutional safeguards of judicial independence. Moreover, she employs a static approach when comparing courts at one point in time, while we try to look at the issue from a dynamic perspective, analyzing recent trends and highlighting critical junctures in development. The two papers thus complement each other.Google Scholar

²³ See Kosař, David, Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe, in this special issue.Google Scholar

²⁴ For the list of the studied ICs, see the Annex. The literature under the term international adjudicative bodies most often understands that these are “1. international governmental organizations, or bodies and procedures of international governmental organizations, that … 2. hear cases where one of the parties is, or could be, a state or an international organization, and that… 3. are composed of independent adjudicators, who … 4. decide the question(s) brought before them on the basis of international law … 5. following pre-determined rules of procedure, and … 6. issue binding decisions.” Cesare PR Romano, Karen J Alter & Yuval Shany, Mapping International Adjudicative Bodies, the Issues and Players, in The Oxford Handbook of International Adjudication 3, 6 (Romano, Cesare, Alter, Karen J., & Shany, Yuval eds., 2014). Our selection of ICs matches the selection of Karen Alter (Alter, supra note 1), Kuyper and Squatrito (Jonathan W. Kuyper & Theresa Squatrito, International courts and global democratic values: Participation, accountability, and justification, 43 Rev. Int. Stud. Lond. 152, 159-160, 175–176 (2017)) and Squatrito (Squatrito, supra note 22).Google Scholar

²⁵ See the articles by Christoph Krenn and by Başak Cali and Stewart Cunningham in this special issue.Google Scholar

²⁶ See Kosař, David, Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe, in this special issue.Google Scholar

²⁷ Bobek, Michal, Epilogue, in Selecting Europe's Judges 279, 288 (Michal Bobek ed., 2015) (arguing that the Parliamentary Assembly of the Council of Europe jealously guarded its leading role in the area of judicial selections, leaving the Advisory Panel established to screen the candidates in a precarious position).Google Scholar

²⁸ Examples include judges sitting as a plenary to elect court officials, discipline or remove judges; bureaus, through which judges organize the day-to-day activities of their courts; ad hoc committees examining complaints about judicial misconduct; court presidents; vice presidents and section presidents.Google Scholar

²⁹ See supra notes 6-7.Google Scholar

³⁰ Abbott, Kenneth W. et al., The Concept of Legalization, 54 Int. Organ. 401–419 (2000).Google Scholar

³¹ Id. at 404-408.Google Scholar

³¹ Hawkins, Darren et al., States, International Organizations and Principal-Agent Theory, in Delegation under Anarchy: Principals, Agents and International Organizations 3, 7 (Hawkins, D., et al. eds., 2006).Google Scholar

³³ Alter, Karen J., Agents or Trustees? International Courts in their Political Context, 14 Eur. J. Int. Relat. 33–63 (2008).Google ScholarPubMed

³⁴ Most courts formulate their own rules of procedure. See, for example, Statute of the International Court of Justice (ICJ), 26 June 1945, Art. 30; Statute of the International Tribunal for the Law of the Sea (ITLOS), Art. 16; Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Art. 15; Statute of the International Criminal Tribunal for Rwanda (ICTR), Art. 14; World Trade Organization, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 17.9 (for the Appellate Body); European Convention of Human Rights (ECHR), Art. 25 (d); American Convention, Art. 60 and Statute of the Inter-American Court of Human Rights (IACtHR), Art. 25 (1); The Agreement Establishing the Caribbean Court of Justice (CCJ), Art. XXI (with the states inviting the President, in consultation with five other judges of the Court selected by him, to establish the Rules of the Court). The Rules of Procedure and Evidence of the International Criminal Court (ICC) has been adopted by the Assembly of State Parties. The Rome Statute of the International Criminal Court, in force since 1 July 2002, Art. 51.Google Scholar

³⁵ See also the article of Shai Dothan in this special issue, particularly the Introduction and section A.I.Google Scholar

³⁶ Golden, Jeffrey, National Groups and the Nomination of Judges of the International Court of Justice: A Preliminary Report, 9 Int. Lawyer 333-349, 347 (1975) (suggesting the establishment of a UN Judicial Committee to rate or simply approve/disapprove in a non-binding manner the nominations by national groups for the ICJ).Google Scholar

³⁷ The Committee established by the Parliamentary Assembly of the Council of Europe scrutinizes candidates and ranks them. See Resolution 2002 (2014) of the Parliamentary Assembly of the Council of Europe, para 9.Google Scholar

³⁸ As an example, the UN Security Council screened nominees for the ICTY and the ICTR. The Council was to select between 28 and 42 candidates out of those nominated for the posts at the ICTY and between 22 and 33 candidates for the ICTR. Terris, Romano, and Swigart, supra note 5 at 31 (arguing that this gives the permanent members of the Security Council an enhanced role when it comes to vetting candidates for ad hoc tribunals).Google Scholar

³⁹ For the CJEU, governments must submit one candidate. For the ECtHR, governments must submit a three-person list, see Art. 22 of the ECHR. For the ICC, a state party may nominate one candidate for any given election, see Art. 36 (4) of the Rome Statute.Google Scholar

⁴⁰ The ECtHR and the CJEU are full representation courts, as their nominees have a guaranteed seat on the bench. This is not the case for most other courts.Google Scholar

⁴¹ Eagleton, Clyde, Choice of Judges for the International Court of Justice, 47 Am. J. Int. Law 462 (1953). See also Golden, supra note 36 at 337 (noting that the intention of this method is clearly to diminish the control of the individual governments).Google Scholar

⁴² See ICJ Statute, Art. 6.Google Scholar

⁴³ Golden, supra note 36 at 338.Google Scholar

⁴⁴ See Kosař, David, Selecting Strasbourg Judges, in Selecting Europe's Judges 120-161 (Michal Bobek ed., 2015); Koen Lemmens, (S)electing Judges for Strasbourg, in Selecting Europe's Judges 95-119 (Michal Bobek ed., 2015); Norbert Paul Engel, More Transparency and Governmental Loyalty for Maintaining Professional Quality in the Election of Judges to the European Court of Human Rights, 32 HRLJ 448 (2012).Google Scholar

⁴⁵ See Guidelines of the Committee of Ministers of the Council of Europe on the Selection of Candidates for the Post of Judge, CM(2012)40-final, 29 March 2012.Google Scholar

⁴⁶ Council of Europe. Steering Committee for Human Rights (CDDH), Selection of candidates for Election as Judge to the European Court of Human Rights: procedure and selection criteria in member States (2017), https://rm.coe.int/selection-of-candidates-for-election-as-judge-to-the-court-procedure-a/168075ad58.Google Scholar

⁴⁷ See for example, the Report submitted by Albania to the PACE Committee, Doc. 14133, 12 September 2016, and Doc. 14279, 28 March 2017) (about inclusion of the President of the Constitutional Court and of the former ECtHR judge in the national selection commission). According to the UK Report (Doc. 14050, 28 April 2016), the selection panel was chaired by Dame Rosalyn Higgins, the former President of the ICJ.Google Scholar

⁴⁸ 2004/752/EC, Euratom: Council Decision of 2 November 2004 establishing the European Union Civil Service Tribunal. Annex 1 The European Union Civil Service Tribunal. Art. 3 (2) (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004D0752).Google Scholar

⁴⁹ Maharajh, Andrew N, Caribbean Court of Justice: A Horizontally and Vertically Comparative Study of the Caribbean's First Independent and Interdependent Court, 47 Cornell Int. Law J. 735, 760 (2014).Google Scholar

⁵⁰ For the CJEU, see the Report produced by a working party composed largely of former judges of the ECJ and the then-Court of First Instance on behest of the Commission, named after Ole Due, former president of the ECJ, 2000, p. 51 (suggesting that an advisory committee consisting of highly-qualified independent lawyers should be set up to verify the legal competence of candidates, thereby assisting the member states in their deliberations). As regards the ECtHR, see Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights, Interights (2003), 34-35. This Report was produced by a group of sitting and former judges of national courts. See also Report of the Group of Wise Persons to the Committee of Ministers, CM Documents, CM(2006)203, 979bis Meeting, 15 November 2006, para 118; Secretary General's contribution: http://www.astrid-online.it/static/upload/protected/Secr/Secretary-General—18-December.pdf, para 18 (“we should examine the idea of a mixed screening panel composed of prominent former high level national or international judges before transmitting the list of candidates to the Parliamentary Assembly for election”).Google Scholar

⁵¹ The Court of Justice of the EU consists of the Court of Justice (CJ) and the General Court (GC).Google Scholar

⁵² For Judge Costa's proposal see, Doc. 12391 06 October 2010, National procedures for the selection of candidates for the European Court of Human Rights; Committee on Legal Affairs and Human Rights Rapporteur: Ms Renate WOHLWEND, Liechtenstein, Group of the European People's Party.Google Scholar

⁵³ Resolution CM/Res(2010)26 on the establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (Adopted by the Committee of Ministers on 10 November 2010 at the 1097bis meeting of the Ministers’ Deputies).Google Scholar

⁵⁴ See Krenn, Christoph, Self-Government at the Court of Justice of the European Union: A Bedrock for Institutional Success, in this special issue.Google Scholar

⁵⁵ Dumbrovský, et al., supra note 21.Google Scholar

⁵⁶ See for the ECtHR panel, Resolution CM (2010)26, part 2 (noting that the panel members should be chosen from among members of the highest national courts, former judges of the ICs, including the ECtHR and other lawyers of recognized competence); for the CJEU, TFEU Art. 255, para. 2 (“The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence”).Google Scholar

⁵⁷ The ECtHR panel included former ECtHR judges: Wildhaber, Jaeger, Pellonpää, Costa, Mahoney, Vajic.Google Scholar

⁵⁸ Fifth Activity Report of the panel provided for by Article 255 of the Treaty on the Functioning of the European Union, 28 February 2018, available at https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-05/5eme_rapport_dactivite_du_c255_-_en_final_-_public.pdf (listing Mr. Christiaan Timmermans, the former President of the Chamber of the Court of Justice of the European Union, alongside a number of prominent national judges).Google Scholar

⁵⁹ TFEU Art. 255, para. 2.Google Scholar

⁶⁰ Resolution CM/Res(2010)26, part 3.Google Scholar

⁶¹ Bobek, supra note 27 at 281; Sauve, supra note 20 at 83 (pointing out that while neither of these panels issues binding opinions, Art. 255 is in a better position, taking into account that the CJEU judges are appointed by a common accord of states – all states have to agree to overcome an unfavorable opinion of the panel. The PACE can appoint judges, irrespective of the unfavorable opinion of the panel, by a majority of votes); Engel, supra note 44 at 449 (pointing out that the ECtHR panel was “vested with less than real power” and that “all these disabling restrictions were introduced despite the existence of a convincing blueprint of a panel solution established by the European Union.”); Lord Mance, The Composition of the European Court of Justice (2011), 24-27, https://www.supremecourt.uk/docs/speech_111019.pdf.Google Scholar

⁶² The Rome Statute of the International Criminal Court, Art. 36 (4) (c).Google Scholar

⁶³ For the terms of reference for the Committee, see Resolution ICC-ASP/10/Res.5 Strengthening the International Criminal Court and the Assembly of States Parties, Adopted at the 9th plenary meeting, on 21 December 2011.Google Scholar

⁶⁴ The former ICC judges that became members of the Advisory Committee included Philippe Kirsch, Daniel David Ntanda Nsereko, Adrian Fulford and Bruno Cotte. The Committee also included former judges from other ICs: Bruno Simma (the ICI) and Manuel Ventura Robles (the IACtHR).Google Scholar

⁶⁵ See Burgorgue-Larsen, Laurence, Between Idealism and Realism: A Few Comparative Reflections and Proposals on the Appointment Process of the Inter-American Commission and Court of Human Rights Members, 5 Notre Dame J. of Int & Comp. Law (2015).Google Scholar

⁶⁶ Similar panel functioned for the ICC (established by the Coalition for the International Criminal Court), prior to the establishment of the Advisory Committee.Google Scholar

⁶⁷ The panel included Cecilia Medina, who prior to becoming the member of this panel was a member (1995-2002) and President of the UN Human Rights Committee (1999-2001) and subsequently a judge (2004-2007) and President of the IACtHR (2008-2009).Google Scholar

⁶⁸ Alter, Karen J., Helfer, Laurence R. & McAllister, Jacqueline R., A New International Human Rights Court For West Africa: The ECOWAS Community Court of Justice, 107 Am. J. Int'l L. 737, 759–760 (2013); Karen J. Alter, James T. Gathii & Laurence R. Helfer, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences, 27 Eur. J. of Int'l L. 293-328 (2016).Google Scholar

⁶⁹ Decision A/Dec.2/06/06 Establishing the Judicial Council of the Community (adopted June 14, 2006), ECOWAS Official Journal, Vol. 49 (2006).Google Scholar

⁷⁰ Alter, Karen J., Helfer, Laurence R. & McAllister, Jacqueline R., supra note 68 at 759-760.Google Scholar

⁷¹ Id. Google Scholar

⁷² Id. Google Scholar

⁷³ Rwelamira, Medard R., Composition and Administration of the Court, in The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999), 153, at 163.Google Scholar

⁷⁴ Thordis Ingadottir, The International Criminal Court, Nomination and Election of Judges, PICT Discussion paper, 2002, 33.Google Scholar

⁷⁵ As an example, the UN General Assembly elected permanent judges for the ICTY. See ICTY Statute, Art. 13 bis (1) (d). The judges of the ICJ are elected by the UN General Assembly and Security Council. See ICJ Statute, Art. 4.Google Scholar

⁷⁶ This is the case with the ECtHR, see ECHR, Art. 22.Google Scholar

⁷⁷ For example, judges of the Court of Justice and General Court of the EU “shall be appointed by common accord of the governments of the Member States” (TFEU, Arts. 253 and 254).Google Scholar

⁷⁸ See Economic Court of the Commonwealth of Independent States (http://courtcis.org/index.php/2013-05-14-08-49-44/judges).Google Scholar

⁷⁹ Malleson, supra note 12 at 686 (noting that the Caribbean model of judicial selection offers an important comparative model to other ICs when considering possible methods for strengthening the institutional protection of judicial independence).Google Scholar

⁸⁰ The Agreement Establishing the Caribbean Court of Justice, Art. IV (6) (7).Google Scholar

⁸¹ Id. at Art. V (1) (a).Google Scholar

⁸² Id. at Art. V (1) (b)-(g).Google Scholar

⁸³ Id. at Art. V (2).Google Scholar

⁸⁴ The Statute of the Central American Court of Justice, Art. 10.Google Scholar

⁸⁵ Arguably, in the EU, a judge can rise from the GC to the CJ.Google Scholar

⁸⁶ See also Blisa – Kosař in this special issue.Google Scholar

⁸⁷ Terris, Romano, and Swigart, supra note 5 at 159.Google Scholar

⁸⁸ ICJ Statute, Art. 21 (1); ITLOS Statute, Art. 12 (1); ECHR, Art. 25 (a), IACtHR Statute, Art. 12 (1), ICC Statute, Art. 38 (1); ICTY Statute, Art. 14 (1); ICTR Statute, Art. 13 (1).Google Scholar

⁸⁹ For example, the ICC President and Vice Presidents are eligible for re-election only once. ICC Statute, Art. 38 (1).Google Scholar

⁹⁰ “The Presidency will be held successively by one of the Magistrates in alphabetical order according to the names of their respective states.” (Statute of the Central American Court of Justice, Art. 16).Google Scholar

⁹¹ The Agreement Establishing the Caribbean Court of Justice, Art. IV (6).Google Scholar

⁹² The Authority, i.e. the Heads of State or Government, “shall designate one of the Judges of the Appellate Division as the President” of the Common Market for Eastern and Southern Africa Court of Justice (the Treaty Establishing the Common Market for Eastern and Southern Africa, Art. 20 (4)). The same holds also for the East African Court of Justice (the Treaty for the Establishment of the East African Community, Art. 24 (4)) and the Tribunal in the Southern African Development Community (the Protocol on the Tribunal in the Southern African Development Community, Art. 5 (1)).Google Scholar

⁹³ Danilenko, Gennady M., The Economic Court of the Commonwealth of Independent States, 31 N. Y. Univ. J. Int. Law Pout. 893 (1998).Google Scholar

⁹⁴ Recently Dunoff, Jeffrey L. & Pollack, Mark A., The Judicial Trilemma, 111 Am. J. Int. Law 225–276 (2017); Paul Mahoney, The International Judiciary – Independence and Accountability, 7 Law Pract. Int. Courts Trib. 313-349 (2008).Google Scholar

⁹⁵ The citations are in the footnotes infra 120-122.Google Scholar

⁹⁶ Another important component of judicial independence might be the extent of immunities – see Keller, Helen & Meier, Severin, Independence and Impartiality in The Judicial Trilemma, 111 AJIL Unbound 344–348 (2017).Google Scholar

⁹⁷ The Rules of Procedure of the ECtHR, Rule 7.Google Scholar

⁹⁸ Treaty Creating the Court of Justice of the Cartagena Agreement (Amended by the Cochabamba Protocol), Art. 10.Google Scholar

⁹⁹ See, for example, ECHR, Art. 23 (4).Google Scholar

¹⁰⁰ See, for example, ICC Statute, Art. 46-47; The Rules of Procedure and Evidence, Rules 24 and 25, 29 (4), 32.Google Scholar

¹⁰¹ See the ECHR, Art. 23 (4) (specifying that a judge will not be dismissed from office unless the other judges decide by a majority of two-thirds).Google Scholar

¹⁰² See CJEU Statute, Art. 6: “A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Judges and Advocates-General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office.”Google Scholar

¹⁰³ CJEU Statute, Art. 6 (unanimously). ECHR, Art. 23 (4) (by 2/3 majority).Google Scholar

¹⁰⁴ The Economic Court of the Commonwealth of Independent States, see Danilenko, supra note 93, at 898.Google Scholar

¹⁰⁵ The Summit (of heads of states or government) in case of the East African Court of (Treaty for the Establishment of the East African Community, Art. 26 (1)) and the Authority (of heads of states or governments) in case of the Common Market for Eastern and Southern Africa Court of Justice (Treaty Establishing the Common Market for Eastern and Southern Africa, Art. 22).Google Scholar

¹⁰⁶ IACtHR Statute, Art. 20 (2).Google Scholar

¹⁰⁷ The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Art. 19.Google Scholar

¹⁰⁸ ICC Rules of Procedure and Evidence, Rule 26 (2).Google Scholar

¹⁰⁹ ICC Rules of Procedure and Evidence, Rule 26 (2).Google Scholar

¹¹⁰ ICC Regulations, Regulation 120 (3).Google Scholar

¹¹¹ ICC Rules of Procedure and Evidence, Rule 29 ICC ROPE, Rule 37 (2) of the ROPE; ICC Statute, Art. 46 (2)(a).Google Scholar

¹¹² ICC (Rome) Statute, Art. 46 (2)(a).Google Scholar

¹¹³ The Agreement Establishing the Caribbean Court of Justice, Art. 4 (6 and 7).Google Scholar

¹¹⁴ Protocol on the Tribunal in the Southern African Development Community, Art. 11. This tribunal was de facto suspended.Google Scholar

¹¹⁵ Decision A/Dec.2/06/06 Establishing the Judicial Council of the Community (adopted June 14, 2006), ECOWAS Official Journal, Vol. 49 (2006), Art. 1; Regulation C/Reg.23/12/07, Adopting the Rules of Procedure of the Community Judicial Council, 15 December 2007, ECOWAS Official Journal, Vol. 52 (December 2007-January 2008), Rule 5 (1) (2).Google Scholar

¹¹⁶ The Chief Justices may be represented by the Judges of the respective Supreme Courts. Regulation C/Reg.23/12/07, Adopting the Rules of Procedure of the Community Judicial Council, 15 December 2007, ECOWAS Official Journal, Vol. 52 (December 2007-January 2008), Rule 6 (3).Google Scholar

¹¹⁷ Decision A/Dec.2/06/06 Establishing the Judicial Council of the Community (adopted June 14, 2006), ECOWAS Official Journal, Vol. 49 (2006), Art. 2 (2); Regulation C/Reg.23/12/07, Adopting the Rules of Procedure of the Community Judicial Council, 15 December 2007, ECOWAS Official Journal, Vol. 52 (December 2007-January 2008), Rule 6 (1) (2).Google Scholar

¹¹⁸ Regulation C/Reg.23/12/07, Adopting the Rules of Procedure of the Community Judicial Council, 15 December 2007, ECOWAS Official Journal, Vol. 52 (December 2007-January 2008), Rule 35 (2) (3).Google Scholar

¹¹⁹ Karen J. Alter, Laurence R. Helfer & Jacqueline R. McAllister, supra note 68 at 759-760 (noting that the judicial council creates misconduct review procedures that insulate judges from attempts by governments to remove them from office).Google Scholar

¹²⁰ Terris, Romano, and Swigart, supra note 5 at 205.Google Scholar

¹²¹ Id. Google Scholar

¹²² For such concern with regard to the ECJ, see Judges in contemporary democracy: an international conversation, 284 (Badinter, Robert & Breyer, Stephen G. eds., 2004).Google Scholar

¹²³ Terris, Romano, and Swigart, supra note 5 at 207.Google Scholar

¹²⁴ The ECtHR Advisory Panel, established by the Committee of Ministers Resolution CM/Res(2010)26.Google Scholar

¹²⁵ The ICC's Advisory Committee on Nominations, envisaged by Art. 36 (4) (c) of the Rome Statute.Google Scholar

¹²⁶ ECOWAS Court's Judicial Council and CJEU's Advisory Panel.Google Scholar

¹²⁷ The CCJ allows the Commission to appoint judges, but the President of the Commission is appointed by the states. Members of the Central American Court of Justice shall be elected by the Supreme Courts justices of member states.Google Scholar

¹²⁸ Even the two European Advisory Panels, one of which seems to have inspired the other, are considerably different.Google Scholar

¹²⁹ The IACtHR does not have a panel similar to the one established for the ECtHR, but the Open Society Justice Initiative convened a panel of independent experts to offer assessments of candidates. This Panel was modelled on a similar initiative pioneered by the Coalition for the ICC.Google Scholar

¹³⁰ As an example, the UN Security Council screened nominees for the ICTY and ICTR. The Council was to select between 28 to 42 candidates out of those nominated for the posts at the ICTY and between 22 to 33 candidates for the ICTR. The ECtHR is unique as it has both expert and political screening bodies.Google Scholar

¹³¹ See Part B of this article.Google Scholar

¹³² The ECtHR, the CJEU, the EFTA Court.Google Scholar

¹³³ The ICC, the IACtHR.Google Scholar

¹³⁴ The Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community.Google Scholar

¹³⁵ The Court of Justice of the Common Market for Eastern and Southern Africa; the East African Court of Justice.Google Scholar

¹³⁶ Cali and Cunningham in this issue label JSG in this area as “constrained”.Google Scholar

¹³⁷ The CCJ is a rare exception since its President is the Chairperson of the selection commission.Google Scholar

¹³⁸ It can be inferred from the limited presence of sitting judges that the screening bodies were clearly not modelled on judge-dominated national judicial councils. However, scholars have argued that states that established some form of judicial councils at the national level may be more inclined to accept de-politicization and judicialization of selection processes at the international level. Malleson, supra note 12.Google Scholar

¹³⁹ There is a direct reference to the CJEU panel in Judge Costa's letter to the member states’ ambassadors, in which he proposed the establishment of the ECtHR panel. See Doc. 12391 6 October 2010, National procedures for the selection of candidates for the European Court of Human Rights; Committee on Legal Affairs and Human Rights Rapporteur: Ms Renate WOHLWEND, Liechtenstein, Group of the European People's Party.Google Scholar

¹⁴⁰ Follesdal, Andreas, Independent yet accountable: Stress test lessons for the European Court of Human Rights, 24 Maastricht J. Eur. Comp. Law 484-510, 507 (2017) (pointing out that while “democratic states must have enough influence in the selection process to ensure indirect democratic accountability,” “democratic control is problematic insofar as it reduces the credibility of the ECtHR's independence”); Engel, supra note 44 at 453 (pointing out that democratic legitimation through the Parliamentary Assembly is “no reliable guarantee of the candidates’ professional quality.”).Google Scholar

¹⁴¹ One study showed that the quality of judges is one of the major concerns (Başak Çalı, Anne Koch & Nicola Bruch, The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights, 35 Hum. Rights Q. 955, 967–968 (2013)).Google Scholar

¹⁴² One recent study on delegation to independent regulatory agencies in the field of competition found that formal independence (whose many elements overlap with self-government) boost regulatory quality, while the formal political accountability does not have the same effect, see Koop, Christel & Hanretty, Chris, Political Independence, Accountability, and the Quality of Regulatory Decision-Making, 51 Comp. Polit. Stud. 38–75 (2018).Google Scholar

¹⁴³ Compare Weiler's version of exit (J. H. H. Weiler, The Transformation of Europe, 100 Yale Law J. 2403,2423 (1991)).Google Scholar

¹⁴⁴ Paul Mahoney has viewed the introduction of an element of independent assessment of the eligibility and suitability of candidates at both national and international levels as an independence-enhancing measure. Mahoney, supra note 13 at 423.Google Scholar

¹⁴⁵ For the definition of decisional independence, see Popova, Maria, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine 18 (2012).Google Scholar

¹⁴⁶ The Art. 255 Panel had already issued several negative opinions of CJEU candidates which nominating states respected, and many states even strengthened the procedural guarantees of screening candidates at the national level (Dumbrovský et al., supra note 21), however, it has not prevented them from repeatedly proposing candidates found later unsuitable by the Panel again (see Slovakia which recently received a negative opinion by the Art. 255 Panel on three candidates for the EU General Court in a row).Google Scholar

¹⁴⁷ See detailed instructions on what kind of candidates they expect in the Activity Reports of the ECtHR Advisory Panel (https://www.coe.int/en/web/dlapil/advisory-panel) or the Art. 255 (CJEU) Panel (Panel Provided for by Article 255 of TFEU, Third Activity Report (2013), 17-21, https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-02/rapport-c-255-en.pdf).Google Scholar

¹⁴⁸ Squatrito, Theresa, Resourcing Global Justice: The Resource Management Design of International Courts, 8 Glob. Policy 62–74 (2017).Google Scholar

¹⁴⁹ Shany, supra note 1 at 84.Google Scholar

¹⁵⁰ Under the ECHR, Art. 46 (2), the Committee of Ministers ‘shall supervise the execution’ of judgments. See for example, Fyrnys, Markus, Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights, 12 German L. J. 1231 (2011).Google Scholar

¹⁵¹ See for example, Huneeus, Alexandra, Courts Resisting Courts: Lessons from the Inter-American Court's Struggle to Enforce Human Rights, 44 Cornell Int'l L.J 494, 500–502 (2011).Google Scholar

¹⁵² Peers, Steve, Sanctions for Infringement of EU Law after the Treaty of Lisbon, 18 Eur. Public Law 33–64 (2012).Google Scholar