International Judges and Experts’ Impartiality and the Problem of Past Declarations

The impartiality of international judges, fact-finders and rapporteurs is a central issue for the international rule of law. Although much attention has been devoted to conflicts of interest and prior office, the status of previous declarations that might impinge on impartiality remains a complex matter whose practical and theoretical ramifications have not been wholly addressed. This article explores the conditions under which prior utterances might impugn the impartiality of international judicial or other international mandate holders involved in the administration of international law. It proposes to frame the problem not merely as it relates to a particular kind of international agent (judge, or expert, or rapporteur), but more broadly as involving an assessment of the notion of impartiality as such. The article begins by proposing a broad outline of the international impartiality regime, drawing on recent cases and practice. It then makes the argument that impartiality should be evaluated by examining a broad range of factors that may demonstrate the presence of bias, and that are not reducible to a simple legal formula. The article seeks to make a contribution to outlining these factors on the basis of existing case law and best practices.