Translucent justice? Transparency and international courts and tribunals

Transparency is a concept, manifesting often as a demand, that has affected every aspect of social life, right from art and architecture to governance.1 In this article, it largely predates the judicialization of international law and the well-documented proliferation of international courts and tribunals (ICTs).2 Naturally, the centrifugal role of ICTs in law-making and the concomitant development of the ‘age of information’3 have led to calls for greater transparency vis-à-vis the functioning of ICTs, as has been the case with other international institutions.4 This is while heightened public scrutiny and criticism regarding their legitimacy and efficiency, as well as the rise of new technologies, have simultaneously increased the circulation of information and in turn, strengthened these demands. Nevertheless, despite its positive contemporary connotation, transparency is not without problems and could, in fact, be counterproductive5 and controversial.6 It conflicts with the specificities of ICTs, both as international institutions where state centrism, sovereignty, and diplomatic roots remain influential, and as judicial bodies. Certain aspects of the adjudicative process have historically prompted questions rooted in fair trial ideals, such as the duty to give reasons and the publicity of hearings and cases. However, in practice, the issue of transparency extends much further beyond these. Realistic and practice-based7 approaches to law and adjudication have contributed to these demands by shifting the attention of lawyers, scholars, and stakeholders. Extra-legal factors and ‘unseen actors’8 are increasingly perceived as being as decisive as, or even more decisive than formal reasoning in explaining and legitimizing judicial decisions. By definition, such factors require access to information that exceeds the more traditional forms, instruments, and objects of ICTs’ communication.