Is Transparency Enough? Informal Governance Networks and the Selection Process of a Georgian Judge to the European Court of Human Rights

Abstract

Transparency has been touted as a cure for facilitating the independence of candidates selected by the States for international tribunals and, therefore, for increasing the legitimacy of these tribunals. Based on a case study of the judicial selection procedure of the ECtHR judge in Georgia, this article suggests that emphasizing the potential of transparency and publicity of the national selection process is misleading because even the drastically enhanced transparency of the process is not a cure for its higher legitimation. By connecting the scholarship on transparency of the selection process for the judges of international tribunals with the literature on informal governance networks, this article cautions against the excessive focus on transparency at the expense of a deeper understanding of the local context in which the selection and nomination processes occur. Drawing on informality studies in the former Soviet Union, the article aspires to initiate a discussion on the policy reform steps pertaining to the operations of informal governance networks in judicial selection processes. This article presents a more realistic and restricted conception of transparency – transparency specialis – which we advocate, will be useful in designing the national judicial selection process. Transparency specialis is an understanding that transparency of the selection process is useful; however, where informal governance is prevalent, transparency solely will not result in a fair and impartial process without the relevant and all-encompassing judiciary reforms.