Publication details
Explaining Conflicting Tendencies of Politicisation and Judicialisation: The Case of the ECtHR
| Authors | |
|---|---|
| Year of publication | 2019 |
| Type | Appeared in Conference without Proceedings |
| Citation | |
| Description | Two European supranational courts – the Court of Justice of the European Union and the European Court of Human Rights – have recently experienced changes in the procedure for selection of their judges, which introduced panels that provides the selecting bodies with their opinions of the candidates. Our ambition is threefold: First, we seek to explain why states opted for the introduction of such panels despite the fact that the panels can issue negative opinions on their preferred candidates. We use Weiler’s version of Hirschman’s exit, voice, loyalty framework, which focuses on exit and voice. Confronted with the foreclosed exit, the states prefer to have courts issuing legally persuasive judgments that can be achieved by staffing the bench with high quality lawyers. Establishing panels that provide opinions on the candidate arguably helps in eliminating poor candidates, thus contributing to a sound composition of courts, which will then probably issue convincing judgments. We will confront our theoretical expectations with the reasons which various important actors (especially the decisive ones, i.e. the states, and those who proposed the changes to the selection process) states as rationales for the reform of the selection process. We discuss to what extent can the exit – voice framework be used for both courts and if some other explanations do not, based on the gathered data, provide more compelling explanation to the question why the panels issuing opinions on judicial candidates for the two European supranational courts emerged. Second, we elaborate the main differences in practice of both panels. There is a scarcity of studies dealing with the functioning of the new selection process at both important courts. Examination of the practice of the panes prepares the ground for our third objective. Finally, we analyse the reaction of states to the practice of the two new panels. We seek to find if the states changed the domestic procedures that select the candidates to be eventually assessed by the panels and search for commonalities and differences among the member states. Moreover, we examine the profiles of the candidates emerging from the national selections of the candidates for the international courts and assess if we can see any discontinuation with the previous practice. |