„The Fate of International Courts”
The 9th edition of the Masterclass in International Law addressed the various functions of international courts, their procedures, and the roles of judges in the international legal order. For the very first time, the Masterclass was taught by another Max Planck director, Professor Hélène Ruiz Fabri from the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.
Originally planned for 2020, this event had to be postponed twice on account of the pandemic, however, finally, from 16 to 19 May 2022, more than 50 participants from all over the world were able to meet in person and spend four days intensely discussing the law and politics of judicial actors on the premises of the MPIL Heidelberg. This year’s organizing team comprised Professor Armin von Bogdandy, Ute Emrich, Martin Jarrett, and Silvia Steininger. In order to emphasize the idea of mutual learning underlying the Masterclass, early-career researchers from both MPI Heidelberg and MPI Luxembourg were invited to contribute to the discussion by presenting their own research projects in connection with the topics of the session. The debate thus built upon a rich and deep knowledge of a variety of case studies, not only from international courts such as the ICJ, the ICC, or ITLOS, but also featured arbitral tribunals under ICSID, regional courts in Europe and the Americas, as well as constitutional courts.
Professor Ruiz Fabri’s extensive oeuvre in the area of international dispute settlement established the groundwork for the debate. By relying on both her scholarly research and her practical experience in international arbitration, she sought to illustrate the underlying choices and consequences of judicial proceedings. Instead of proposing a universal theory of international adjudication, her approach emphasizes the various perspectives - ranging from doctrinal, normative, sociological, and critical - that can be used to reflect upon rules of judicial appointment, case selection, interpretation, and enforcement. She invited the participants, most of them early-career scholars, to critically reflect on the politics of procedure.
On the first day, Professor Ruiz Fabri raised the fundamental question of “what is an international court?”. Based on the case study of the WTO Dispute Settlement Body, she highlighted the various definitions and conceptual understandings of international courts, which equally influence our ideas of legitimacy and authority. Achilles Skordas (MPI Heidelberg) and Carlos Bichet Nicoletti (MPI Luxembourg) highlighted current challenges of the ICJ and conceptual delimitation of the role of international judges. The second day then went deeper into the question of “who are the judges?” by highlighting the processes of appointment, selection, socialization, and assignment of international judges. While Kritika Sharma (MPI Luxembourg) investigated the gender representation of ICC judges, Christoph Krenn (University of Vienna/MPI Heidelberg) elaborated on the CJEU. The discussion not only focused on questions of gender, but also raised other common features of the exclusive college of the international judiciary such as nationality, regional origin, age or education background. In the evening, Professor Ruiz Fabri built upon those insights in her public lecture on “Feminism and International Law” at the DAI Heidelberg.
The third day focused on the interaction between international courts and tribunals. While Hélène Ruiz Fabri mainly discussed the implications and challenges of cross references, Raffaela Kunz (MPI Heidelberg) introduced the multiple forms of interaction between each other and with constitutional courts that the ECtHR and the IACtHR undertake and Bin Zhao (MPI Luxembourg) investigated the interactions of the ITLOS Tribunal. In the afternoon, the participants enjoyed a lively city tour, led by MPI Heidelberg alumnus Stefan Häußler and Professor von Bogdandy, which focused not only the classical history of Heidelberg but also its importance to legal scholarship and the various thinkers who had spent time in the region.
On the fourth and final day, the question of judicial ethics again highlighted a very current topic of legal debate. Following Professor Ruiz Fabri’s discussion on issue conflicts, and in particular the normative ramifications of double-hatting and “moonlighting”, Randi Ayman (MPI Luxembourg) focused on her practical experience with ICSID to discuss the various frameworks on the regulation of the conduct of arbitrators. Jannika Jahn (MPI Heidelberg) drew on her study of constitutional courts in the European legal space to discuss the freedom of expression of judges and its consequences for judicial independence and impartiality.
Ultimately, the Masterclass enabled a fruitful interaction between the doctrinal-normative approach to the authority of international courts developed at the MPI Heidelberg under the auspices of Professor Armin von Bogdandy with the critical-sociological perspective on the procedures of dispute settlement practiced at the MPI Luxembourg.