A Foreign Judges

At first glance, it might be thought that foreignness is a straightforward category or identity attribute, denoting someone from outside. Scratching the surface, however, shows that foreignness is relative, complex and changeable. If the foreigner is someone from the outside, much then depends on how the inside – the internal or the domestic – is defined and understood. In the case of judges, what exactly does the foreign judge stand ‘outside’ of: the nation-state, the region, the profession or the legal system? Foreignness is also a matter of standpoint and perception: after all, ‘a foreigner in one place is at home in another’.Footnote ⁴ While it is important to give foreignness some content, particularly to support data collection and typologies for the purposes of study and analysis, it is also important to understand that foreignness is relational and often a matter of degree. Rosalind Dixon and Vicki Jackson have shown how foreign judges have a hybrid quality as insiders and outsiders, with the capacity ‘to bridge rather than operate on one side of the outsider–insider divide’.Footnote ⁵ In Chapter 20, Tracy Robinson describes foreign judging in the Caribbean as ‘intrinsically protean, and as capturing more than the quality of being an outsider’. Robinson’s chapter, along with Anna Dziedzic’s study of ‘travelling’ judges of the Pacific in Chapter 19, suggest that the hybrid quality identified by Dixon and Jackson is, in part, a consequence of the mobility of foreign judges, as judges cross jurisdictional and national borders and navigate the outsider–insider divide, creating connections and communities that reduce sharp distinctions between home and abroad.

The foreignness of a judge tends to be defined against two qualities: citizenship and place of professional qualifications. In practice, a foreign judge will often be both a non-citizen and hold legal qualifications and experience in a different jurisdiction. It is worth disentangling the two dimensions, however, as definitional choice and emphasis can indicate different understandings of foreignness.

In some contexts, foreign judges are defined as non-citizens. For example, the foreign judges of the Constitutional Court of Bosnia-Herzegovina must ‘not be citizens of Bosnia and Herzegovina or of any neighbouring state’.Footnote ⁶ Meanwhile, laws in Fiji, Marshall Islands, Namibia, Papua New Guinea and Seychelles use citizenship as the criterion to differentiate between local and foreign judges in relation to tenure.Footnote ⁷ Citizenship is a legal status conferred on an individual by the state, and so provides a definitive legal criterion for differentiating between local and foreign judges. Citizenship also emphasises qualities of membership and belonging, which are more often associated with the thicker concept of nationality. However, because membership, belonging and the polity itself can be defined in different ways, so can foreignness. For example, a broad distinction is sometimes made between ethnic forms of nationality in which national membership derives primarily from a common ethnic or cultural group, and civic forms of nationality in which national membership flows from participation in the civic life of the state.Footnote ⁸ The preference for one approach over the other will affect who is considered to belong and who is considered foreign. Bosnia-Herzegovina again provides an instructive example, in that citizens of neighbouring states, in a context where national identity is not contained by state borders, are not eligible to be foreign judges. Taking the opposite approach, legislation in Kuwait, Qatar and the United Arab Emirates permits the appointment of non-citizen judges as long as they are nationals of another Arab state,Footnote ⁹ indicating a preference for non-citizen judges who nonetheless share a regional identity shaped by shared language, religion and legal tradition.

A focus on citizenship leads to a focus on states and state borders. However, several jurisdictions can exist within a state such that judges might share a citizenship but still be considered outsiders. For example, judges from the United Kingdom serving on the courts of a British Overseas Territory may share the same citizenship as those in the territory, but they are in effect serving in a jurisdiction with a distinctive legal system and identity. Colonial judges of the past and present are in a similar position.Footnote ¹⁰ For this reason, several authors in this Handbook define foreign judges not by citizenship, but as judicial officers who come from elsewhere.Footnote ¹¹ A degree of foreignness can also arise within a state or territory, for example when judges move across jurisdictional boundaries between subnational units in a federal system (especially when subnational units have a different legal system, such as Quebec within Canada or Scotland within the United Kingdom) or when non-indigenous judges serve on tribal courts.Footnote ¹² This Handbook focuses on the transnational movement of judges across the borders of nation-states, but in doing so also provides insights into these other dimensions of foreignness.

Foreign judges may also be defined by reference to their professional qualifications and experience from a different jurisdiction. For example, the foreign judges of the Hong Kong Court of Final Appeal are defined as non-resident ‘judges from other common law jurisdictions’.Footnote ¹³ Here too, foreignness may also be a matter of degree. Many jurisdictions permit the appointment of foreign judges only from countries with similar legal systems, suggesting that a shared legal tradition might attenuate the foreignness of different legal systems.Footnote ¹⁴ That said, a shared legal tradition is unlikely to remove all points of difference. As Laurence Burgorgue-Larsen observes in Chapter 12, Andorra’s foreign judges are recruited from France and Spain, and while they share in the same European civil law tradition, the different national legal cultures of the judges have a material effect on judicial deliberations and judgment writing.

Conditions of globalisation complicate the categorisation of individuals as foreign and the presumptions that flow from foreignness. People move across borders to live, study and work. Those who move away from their home state might consider themselves members of a diaspora, who retain ties of membership and belonging to their home state but hold formal citizenship in another. They might be dual citizens or become naturalised citizens (as is the case with several judges in SeychellesFootnote ¹⁵). Students might go to other countries to study law;Footnote ¹⁶ indeed for those coming from smaller states this might be the only way to gain legal qualifications. Even those students who study at ‘home’ in a small state will find their legal education conducted and populated by external actors and sources.Footnote ¹⁷ Lawyers increasingly travel to work for global law firms and provide legal services across national borders.Footnote ¹⁸

Regionalism also creates conditions in which foreignness can become a matter of degree. For example, in the Caribbean there is a high degree of regional integration of the legal profession, shaped by regional law schools, the mutual recognition of legal qualifications across national borders and two regional courts which exercise domestic jurisdiction. One result is an understanding, described by Sir Dennis Byron in Chapter 13, that Caribbean judges, although from other states, are not ‘foreign’ judges.

Cross-border interactions between courts, judges and lawyers work to create what Anne-Marie Slaughter describes as a ‘global community of courts’ and an emerging sense that judges are not only representatives of a particular polity but also fellow professionals engaged in a ‘common judicial enterprise’.Footnote ¹⁹ The practice of foreign judging is thus one of many legal phenomena that test the borderlines between domestic and foreign, national and international. This is demonstrated vividly in hybrid criminal tribunals established in states that have experienced conflicts and mass atrocities. These tribunals are created under domestic law and/or by international treaty and are constituted by a mixed bench of local and foreign judges who apply both domestic and international criminal law. In Chapter 10, Harry Hobbs describes how hybrid criminal tribunals serve two political communities – the international community and the people of the state affected – which both have an interest in holding those who commit serious crimes to account, further collapsing clear distinctions between local and foreign judges.

Although there is diversity and change, the category of foreign judge nevertheless continues to have purchase. Despite the mobility associated with globalisation and regionalisation, jurisdictional and state borders still matter, and laws and judges are still closely tied to domestic polities. As long as citizen judges are the norm and foreign judges the exception on domestic courts, it is worth asking why the nationality of adjudicators matters. The study of the exception – foreign judges – is one way to interrogate this question.

B Domestic Courts

Domestic courts include ordinary courts in the jurisdiction as well as specialist or ad hoc courts or tribunals created for a particular purpose, for example to try specific crimes or determine transnational commercial disputes. These courts are domestic in two senses: they are established by domestic law and they apply domestic laws. In this, the position of foreign judges on domestic courts differs from that of international judges. International courts are created by agreement between states and resolve disputes according to international or regional law, making it difficult to conceive of international judges as drawn from outside the jurisdiction in the way that foreign judges are. It is fitting that international courts, as institutions of a community of states, be composed of judges of different nationalities. While the nationality of the judges of international courts has received scholarly attentionFootnote ²⁰ and provides some relevant parallels, foreign judges on domestic courts raise distinctive issues and require separate study.

In many cases, domestic courts are readily identifiable as such. However, as with foreign judges, some courts sit on the margins between the domestic and the international. Some supranational courts, such as the Judicial Committee of the Privy Council, the Caribbean Court of Justice and the Eastern Caribbean Supreme Court, apply domestic law but exist beyond the territory and serve more than a single state. Hybrid criminal tribunals deliberately combine international and domestic law, judges and legal professionals; while colonial mixed courts provided a different kind of halfway house between the domestic and international legal orders. Regional, hybrid and mixed courts have been included in this collection as judicial institutions that feature judges who, to at least some degree, are foreign, and thus are another incidence of the wider phenomenon of foreign judging.

A Africa

Prior to independence, colonial courts in Africa were staffed by Belgian, British, French, German, Italian, Portuguese and Spanish judges appointed by their respective imperial powers. Upon independence, many states lacked legally qualified citizens to fill positions on their courts and so continued to rely on foreign judges.Footnote ²⁵ The pace and manner of localisation varied across the continent. In West Africa, where greater numbers of Africans had been admitted as lawyers prior to independence, there was less reliance on foreign judges than in Eastern African states like Kenya.Footnote ²⁶

Today, foreign judges in Africa predominantly sit on ordinary courts in smaller Commonwealth states. In the southern African states of Botswana, Eswatini, Lesotho and Namibia, foreign judges (mostly from South Africa) serve as part-time visiting judges on courts of appeal and as judges in the superior trial courts. In Seychelles, the smallest state in Africa, judges from Botswana, Mauritius, Sri Lanka, Uganda and the United Kingdom sit alongside a growing number of Seychellois judges on the Supreme Court and Court of Appeal. Foreign judges have been a constant in The Gambia throughout authoritarian rule and transition to democracy.

In countries where foreign judges no longer sit on ordinary courts, they are sometimes sought for specialist courts. Kenya’s Interim Independent Constitutional Dispute Resolution Court, established to hear disputes arising from the constitution making process in 2010, included three foreign judges on its nine-member bench.Footnote ²⁷ Rwanda, which had rejected the use of foreign judges to try genocide and conflict-related cases as a ‘breach of the sovereignty of the Rwandese people’,Footnote ²⁸ changed its laws in 2008 to allow two foreign judges to sit on its newly established commercial court.Footnote ²⁹ Several African states have established hybrid courts with special jurisdiction to hear conflict-related crimes, including the Special Criminal Court in the Central African Republic and the Extraordinary African Chambers in Chad. The Special Court of Sierra Leone included a majority of foreign judges and, since its dissolution in 2013, a panel of international judges remains available to hear conflict-related cases under a residual mechanism.Footnote ³⁰

B Caribbean

Foreign judges sit on the domestic courts of some independent states and overseas territories in the Caribbean. As in Africa, the practice has colonial antecedents but has evolved through economic integration, which has created a mobile legal profession, such that jurisdictions draw readily on regional lawyers and judges. The independent states of Bahamas and Belize appoint foreign judges to their domestic courts. Some jurisdictions have empowered regional courts to adjudicate domestic law. The Caribbean Court of Justice and the Judicial Committee of the Privy Council serve as extraterritorial courts of appeal, with the Caribbean Court of Justice being much closer, institutionally and geographically, to the jurisdictions it serves. The Eastern Caribbean Supreme Court functions as the apex court of six states (Antigua and Barbuda, Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, and Saint Vincent and the Grenadines) and three territories (Anguilla, British Virgin Islands and Montserrat). Its judges are drawn from these jurisdictions as well as the United Kingdom and from foreign non-member states. The courts of the British Overseas Territories of Turks and Caicos Islands and Cayman Islands include judges from Britain and other Commonwealth countries.

C Pacific

The Pacific region, like the Caribbean, encompasses independent states as well as territories with varying degrees of self-government and dependency. Foreign judges sit on ordinary courts in the independent states of Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. In the smallest jurisdictions, all of the judges who sit on the superior courts are foreign; in others foreign judges serve alongside local judges, mainly on the superior trial courts and courts of appeal. Some foreign judges reside in the state and serve full time, while others visit periodically for court sittings. The legacies of colonialism continue to be reflected in the cohort of foreign judges, with many of them recruited from former colonial administrators: the United States in the cases of Federated States of Micronesia, Marshall Islands and Palau; and Australia, New Zealand and the United Kingdom in the other Pacific states. There is, however, increasing diversity in the cohort of foreign judges, with the appointment of foreign judges from a range of other Commonwealth jurisdictions.

D Asia

In Asia, foreign judges sit in only a few jurisdictions and the practice takes diverse forms. Foreign judges sit on the Courts of Final Appeal in Hong Kong and Macau, Special Administrative Regions of the People’s Republic of China. Both are former colonies – of Britain in the case of Hong Kong and Portugal in the case of Macau – that were transferred to Chinese sovereignty in the late 1990s. Hong Kong’s common law system and Macau’s civil law system are distinct from China’s socialist legal system, and foreign judges are a mark of this distinction. In Hong Kong, the five-member bench of the Court of Final Appeal will in most cases include one foreign judge, usually a retired judge from Australia, Canada, New Zealand or the United Kingdom. Portuguese judges have sat on all levels of courts in Macau, although as Paulo Cardinal explains in Chapter 6, their use is declining. Foreign judges also sit in Brunei Darussalam. It has a dual legal system, with Sharia courts presided over by citizen judges and common law courts for civil and commercial matters on which foreign judges (typically from Britain, Hong Kong and Singapore) may sit.

East Timor presents a different context for the use of foreign judges. It became an independent state in 2000, following colonial rule by Portugal and occupation by Indonesia. Its vote for independence sparked extensive violence and a United Nations-led peacekeeping mission assumed responsibility for transitional governance. Between 2000 and 2005, hybrid tribunals comprised of two foreign judges and one Timorese judge were formed to adjudicate serious crimes arising from the conflict. In addition, the United Nations administration worked with the new Timorese government to recruit foreign judges for the ordinary courts. Portuguese judges sat on these courts until 2014, when the Parliament resolved to terminate the contracts of all foreign judges, prosecutors and advisers in the justice sector. Foreign judges also serve in post-conflict Cambodia on a hybrid criminal tribunal established to try serious crimes committed during the Khmer Rouge period.

Three states in Asia – Kazakhstan, Singapore and China – have established international commercial courts. The Astana International Financial Centre Court is a common law court, separate from Kazakhstan’s civil law system, with judges from the United Kingdom. The Singapore International Commercial Court has 22 Singaporean judges and 12 foreign judges, recruited from common law and civil law jurisdictions. In contrast, the Chinese International Commercial Court has only Chinese judges, who are assisted by a standing panel of foreign advisers, some of whom are former judges from foreign jurisdictions.

E Middle East

Foreign judges sit on ordinary courts in Bahrain, Kuwait, Qatar and the United Arab Emirates. These foreign judges are recruited from within the Arab region, in particular from Egypt, Jordan, Morocco and Sudan. As in Asia, several jurisdictions have established international commercial courts, separate from other domestic courts. The Qatar Civil and Commercial Court, the Dubai International Financial Centre Courts and the Abu Dhabi Global Market Courts provide dispute resolution in transnational commercial and civil matters and foreign judges from a range of common law jurisdictions have been appointed to these courts. Foreign judges also serve on the Special Tribunal for Lebanon, a hybrid criminal tribunal established to prosecute terrorism crimes.

F Europe

Courts in the small states of Andorra, Liechtenstein, Monaco and San Marino draw on judges from neighbouring European states. Citizens of France and Spain sit on the Constitutional Court of Andorra. In Liechtenstein, judges from Austria and Switzerland sit with local judges on ordinary courts and the Constitutional Court. Judges of the Supreme Court of Monaco are ‘selected from among particularly competent jurists’Footnote ³¹ from France. The judges on San Marino’s Collegio Garante della Costituzionalità delle Norme are Italian citizens, selected from professors and experienced magistrates.Footnote ³²

Foreign judges sit on the Constitutional Courts of Bosnia-Herzegovina and, until 2017, Kosovo, jurisdictions both marred by past conflict. The use of foreign judges in these two jurisdictions is distinctive in several ways: it is mandatory that three of the nine Constitutional Court judges are foreign judges appointed by or in consultation with the President of the European Court of Human Rights.Footnote ³³ Foreign judges also served on hybrid criminal tribunals in each jurisdiction. United Nations and European Union missions to Kosovo made extensive use of foreign legal personnel, including judges, to deal with war crimes, organised crime, inter-ethnic violence and corruption.Footnote ³⁴ In Bosnia-Herzegovina, foreign judges, mostly from western Europe and the United States, served on a specialist court to try serious crimes from 2005 until their mandate ended in 2009.Footnote ³⁵

G Latin America

Foreign judges are a rarity in Latin America. In the few instances where foreign judges have been proposed, the idea has been met with strong resistance. For example, in 2016 Colombia established a ‘Special Jurisdiction for Peace’ to investigate and prosecute those responsible for human rights violations during the internal armed conflict. A proposal that this special procedure involve foreign judges was abandoned in the face of criticism and foreign jurists were given an advisory role only.Footnote ³⁶ A more successful, but still limited, role for foreign judges arose in Honduras, which in 2016 established a mission against corruption with foreign personnel including judges whose role included overseeing institutional reform and supervising the prosecution process and other judges.

A Necessity

A rationale that commonly arises in small jurisdictions is the insufficient number of qualified local lawyers and judges willing and able to take up judicial office. Such a shortage might arise because of the small size of the population and the legal community, the depletion of the legal profession during conflict or authoritarian rule, past discriminatory practices that inhibited access to the legal profession, or insufficient remuneration comparable to other legal careers to attract good candidates. Alternatively, there might be a temporary high demand for judges, for example to clear a backlog of cases. In such contexts, foreign judges ‘fill gaps’ in the judiciary as a transitional measure pending the availability of local candidates. Under this rationale, foreign judges are first and foremost judges, with specialist expertise and professional commitments to impartiality and the law, which make them transferrable across jurisdictional boundaries.Footnote ³⁷ In other words, the value of foreign judges under this rationale lies more in their availability to provide judicial services than in their foreignness.

B Institution Building

Sometimes, foreign judges are used when there is not only a shortage of judges, but the domestic judicial system is damaged and ineffective. In such cases, foreign judges are sought to fill gaps as well as to help rebuild and strengthen judicial institutions. This use of foreign judges often arises in contexts where there are international missions or interventions. For example, internationally supported post-conflict peacebuilding missions in East Timor and Kosovo were mandated to establish the rule of law, rebuild the institutions of the state, and hold those who committed crimes during the conflicts accountable. Both drew on foreign judges to do so. These missions built on the earlier precedent of the United Nations’ assistance to the Democratic Republic of Congo in the 1960s, which recruited international experts including judges to construct the institutions of government.Footnote ³⁸ An example of a different kind is the internationalised anti-corruption mission in Honduras, which sought to reform judicial institutions compromised by corruption. There, foreign judges were mandated to ‘supervise and evaluate’ Honduran officials and reform institutions.Footnote ³⁹

In these examples, foreign judging overlaps with wider efforts by international organisations to provide assistance to ‘developing’ countries.Footnote ⁴⁰ Here, foreign judges are valued as technical experts with connections to the international community and its development projects and resources. International agencies recruiting foreign judges in these contexts often specify capacity building as part of the judge’s role. Foreign judges are sought to mentor local judges and other actors, by transferring skills and modelling high standards of judicial conduct.Footnote ⁴¹ Foreign judges in such positions might be understood as supervising or upholding internationally approved arrangements.Footnote ⁴² There is a danger that in some cases, foreign judges are or are perceived to be patronising and disrespectful towards local colleagues.Footnote ⁴³ However, as Chief Justice Mabel Agyemang shows in Chapter 2, foreign judges who transfer expertise and mentor their colleagues can provide a pathway to end a jurisdiction’s dependence on foreign judges.

C Distance

A third rationale focuses on foreign judges’ distance from domestic politics and interests. Distance, in physical terms, as well as in relationships and pre-conceived opinions, is thought to lend greater assurance of the impartiality of judges and judiciaries. There are different examples of this rationale in practice. In Bosnia-Herzegovina, foreign judges were seen as a way to ensure the neutrality of the Constitutional Court in a context where deep ethnic divisions within the state were likely to be reflected on the bench. A similar model was proposed, but not implemented, in the Constitution and Annan plan for a reunified Cyprus, in which the superior courts were to include judges who were not citizens of Cyprus, Turkey, Greece or the United Kingdom.Footnote ⁴⁴ On this rationale, foreign judges are cast as neutral judges who are not caught up in the political interests of the different groups within the state.

Variations on the distance rationale are common in small jurisdictions. Sometimes, it is broadly framed as the avoidance of conflict of interest in general. Laurence Burgorgue-Larsen in Chapter 12 and Ann Black in Chapter 24 explain that in the small states of Andorra and Brunei Darussalam respectively, legal elites share many connections in government, parliament, legal practice and business, making it difficult for local judges to avoid actual or perceived conflicts of interest. In other contexts, the justification for turning to a foreign judge is more narrowly framed, such as when other judges are unable to hear a case because of the rule against bias,Footnote ⁴⁵ or because of political sensitivities.Footnote ⁴⁶ This rationale casts distance and ‘outsider-ness’ as the key virtues of a foreign judge.

D Expertise

A fourth rationale is that foreign judges bring knowledge and expertise to the domestic court. Sometimes, this rationale can be a more specific instantiation of ‘gap filling’: if a local judiciary lacks judges with specialist legal expertise, for example in commercial law, then a foreign judge might be recruited to provide it. Other times, the expertise of foreign judges in the laws of their home jurisdiction is what is valued. As Peter Bußjäger explains in Chapter 4, significant parts of Liechtenstein’s legal code are based on Austrian and Swiss law, and judges are bound to interpret those laws in line with the jurisprudence in their country of origin. Foreign judges are therefore recruited from Austria and Switzerland to provide this expertise. Similarly, in Bosnia-Herzegovina and Kosovo, where the European Convention on Human Rights is directly applicable, foreign judges – who are appointed with the involvement of the President of the European Court of Human Rights – assist the Constitutional Courts to interpret and apply this law.Footnote ⁴⁷ Anselmo Reyes in Chapter 5 describes how the Singapore International Commercial Court includes foreign judges from a range of common law and civil law jurisdictions to provide the diversity and knowledge necessary for a court that rules on issues of fact and law from different countries across the world.

This rationale can also be more generalised, as the benefit of comparative expertise. Foreign judges bring knowledge and experience of overseas laws, which they can use to inform the development of the law in the jurisdictions in which they sit.Footnote ⁴⁸ In Chapter 3, Justice Joseph Fok shows how foreign judges on Hong Kong’s Court of Final Appeal bring their knowledge of other common law countries to bear on the development of the common law of Hong Kong. In this, foreign judging shares similarities with a court’s engagement with foreign case law in the deliberative decision-making process.Footnote ⁴⁹ This may be particularly valuable in new or small jurisdictions, which lack extensive local legal precedents and seek to build their jurisprudence with the assistance of foreign legal experience. On this rationale, foreign judges are valued for their expertise in the legal system of their home country or regional or international law.

E Reputation

Foreign judges are sometimes appointed to enhance the reputation of the domestic court and the polity in general. A recurring example arises in small jurisdictions with strong, internationalised economies, such as the British Virgin Isles, Brunei Darussalam, Hong Kong, Liechtenstein, and the Gulf states, which provide impartial and professional courts to attract and reassure international businesses and investors. Foreign judges are said to lend confidence and enhance the international image of the judiciary.

Sometimes, foreign judges serve as a visible marker of the difference between courts in the one legal system. For example, in Hong Kong and Macau, foreign judges signal the distinctiveness of their legal systems from that of mainland China, and the qualities of judicial independence inherent in those systems.Footnote ⁵⁰ In Chapter 24, Ann Black explains that in Brunei Darussalam, the appointment of foreign judges serves to ‘maintain the common law courts’ reputation for independence and professionalism in a context of increasing Islamisation of the mixed legal system and in which the Sultan has direct powers of control over the judiciary’. Justice Joseph Fok, a Permanent Judge of the Hong Kong Court of Final Appeal, explains the mechanics of this rationale in Chapter 3 when he writes: ‘it is perfectly reasonable to ask, “Would so many eminent serving and retired judges have sat, and continue to sit, in a court in Hong Kong if any of them thought the system was subject to improper interference from outside agencies?”’Footnote ⁵¹ This rationale takes advantage of the ability of the foreigner to provide an external affirmation of the ‘choice-worthiness’ of the regime, to domestic and international audiences.Footnote ⁵²

Reputation deals in appearances, and much will depend on who is appointed to be a foreign judge, in terms of their personal eminence and experience as well as their jurisdiction of origin and the intended domestic and external audiences.Footnote ⁵³ One effect of the reputation rationale is an emphasis on the symbolic value of foreign judges to the status of the court or the polity. However, as Simon Young cautions in Chapter 18, foreign judges can symbolise different things to different people, from the health of the rule of law on the one hand, to colonialism and foreign interference on the other.

F Legitimacy and Effectiveness

Identifying the relevant rationale(s) for the appointment of foreign judges allows for a critical assessment of the legitimacy and effectiveness of foreign judging in a particular context. Several lines of inquiry arise. Does the claimed rationale address circumstances that in fact exist in practice? (For example, is there really a shortage of qualified local candidates for judicial appointment?) Are foreign judges the best way to address the problem identified? (For example, if there is a shortage of local candidates mainly because the pay and conditions of judicial office are poor, a better response may be to improve such conditions rather than import judges.) Does the practice of foreign judging achieve the desired purpose? Chapters 7, 8 and 9 – by Constance Grewe on Bosnia-Herzegovina and Kosovo, Sapna Reheem Shaila on East Timor and Arturo Villagrán on Honduras respectively – undertake such inquiries and question whether foreign judges met their mandate, and whether that mandate was appropriate and achievable at all.

Sometimes, one or more of the five rationales is used as a cover to disguise bad reasons for making use of foreign judges. One questionable aim is the appointment of foreign judges as a continuance of colonialism, so that a foreign legal system dominates and controls the development of domestic law. Colonial mixed courts, for example, were created as ‘instruments of foreign domination’ to protect the economic interests of powerful foreign states in the host polity under the cover of the colonial ‘civilising’ mission.Footnote ⁵⁴ In Chapter 26, Gonzaga Puas explains how the entrenchment of United States law in the Federated States of Micronesia continues to benefit United States lawyers and marginalise Micronesian lawyers. Another problematic rationale is a preference for foreign judges because they serve with limited protections on tenure and are thus susceptible to political influence. In Chapter 21, Rachel Ellett shows that in southern African states foreign judges on short term contracts are ‘less threatening’ to authoritarian regimes ‘because they can easily be dismissed without dismantling the democratic window-dressing critical for regime legitimacy’. Similar practices of control and interference were adopted in The Gambia, which Satang Nabaneh discusses in Chapter 23.

The five rationales are presented here from the point of view of the jurisdiction using foreign judges. Individuals have their own reasons and justifications for taking up a judicial appointment in a foreign jurisdiction. First-hand reflections provide fascinating insights into the motivations of judges themselves. In this, it is important to recognise the diverse circumstances of candidates for foreign judicial appointments – some are lawyers, some are serving or retired judges, others are academics – and all come from different countries across the world. As such, personal motivations vary. Appointments overseas might enable lawyers to pursue a judicial career, or allow judges to continue their career after reaching the mandatory retirement age in their home jurisdiction.Footnote ⁵⁵ Sometimes judicial service in a foreign jurisdiction is more lucrative in terms of pay and conditions than opportunities at home, either because of the affluence of the host state or because the positions are funded by international donors. In Chapter 2, Chief Justice Agyemang describes how she decided to take up an opportunity to serve as a judge overseas out of a sense of service and for her own professional development, with the support of the Chief Justice in her home country Ghana. While she initially intended to return to her home country, she has instead carved out an internationalised judicial career across several Commonwealth jurisdictions.

The motivations of foreign judges, like rationales for their use, are important for understanding how foreign judging is practiced and sustained in different contexts. Rationales can serve as a guide, so that the legal frameworks and practices of foreign judging are tailored to realising the goals sought. Rationale provides a touchstone for justifying who is recruited to be a foreign judge; design choices about the competences, tenure and conditions of judicial service; and strategies for building judicial culture in how foreign judges and local judges interact: in other words, the ‘who, when, how and by what means’ of foreign judging.Footnote ⁵⁶

A Size

One relevant factor is the size of the jurisdiction. Of the 42 jurisdictions in which foreign judges serve on ordinary courtsFootnote ⁵⁷ 30 are small states or territories with populations of less than 1.5 million.Footnote ⁵⁸ In small jurisdictions, the cohort of law graduates and lawyers which supply candidates for judicial appointment are also likely to be small. They have smaller administrations and officials are often given multiple roles, limiting scope for specialisation.Footnote ⁵⁹ Economies of scale mean there may not be demand for a full-time court, especially at the superior and appellate levels, while the cost per capita of maintaining such courts is high. Sharing judges (and other personnel) across jurisdictions can be a cost-effective way of providing judicial services. In small jurisdictions, where ‘everyone knows everyone’, judges are also likely to have close ties to government and others in the community, creating risks of bias or conflicts of interest which also justify the appointment of foreign judges.

B Legal System

The nature of the legal system also appears significant. Again, taking the 42 jurisdictions in which foreign judges serve on ordinary courts, 24 have common law systems, 11 have civil law systems, and 7 have systems that mix common and civil law.Footnote ⁶⁰ This raises the question: Is there something about the common law that makes it more receptive to foreign judges? One point of distinction between common law and civil law systems is the role of the judge. Common law is created and developed by judges, reasoning by analogy from case to case to build a body of law. In contrast, in the civil law tradition, judges are portrayed as ‘the mouth of the law’, applying codified law to resolve disputes. The differences and similarities between the two legal systems are of course much more nuanced than these caricatured descriptions suggest.Footnote ⁶¹ Even so, theorising connections between ‘ideal models’ of the judicial role and receptiveness to foreign judges produces mixed results. On the one hand, both systems expect judges to have skills that are transferrable across national borders: common law judges draw on a shared tradition of legal analysis and reasoning by analogy, while civil law judges are experts in reading and applying pre-existing legal codes. On the other hand, both also value direct knowledge of local law and its context: ‘creative’ common law judges develop the law in response to local context, while civil law judges are expected to have specific and expert knowledge of the content of national legal codes.

A second point of distinction which may be more telling is the structure of judicial careers. Civil law systems tend to have bureaucratic judiciaries, in which judges are recruited early in their legal careers and trained and promoted within the judiciary. As a result, the judiciary tends to be closed, not only to foreign judges, but also to established citizen lawyers. In contrast, judges in common law systems tend to be recruited from the legal profession after a period in legal practice, with the degree of experience generally being commensurate with the seniority of the judicial appointment. While in practice the distinction is not so sharp,Footnote ⁶² especially when it comes to constitutional courts,Footnote ⁶³ the relative openness of the judicial career structure in common law jurisdictions might facilitate the appointment of foreign judges.

An alternative hypothesis is that it is not the common law per se that makes jurisdictions more receptive to foreign judges, but the experience of British colonisation. A common feature of European colonisation of the nineteenth and twentieth centuries was the importation of imperial law to colonial outposts and its enforcement by imperial judges, at least in areas of colonial activity.Footnote ⁶⁴ Notably, however, while many newly independent former British colonies continued to recruit foreign judges from the United Kingdom and other common law jurisdictions, few former colonies of continental European imperial powers did so. One reason for this may lie in efforts by institutions such as the Colonial Legal Service and the Privy Council to transition from institutions of empire to institutions of the Commonwealth by diversifying their membership and adjudicating in a way that was responsive to local needs.Footnote ⁶⁵ Another reason may be the centrality of the English bar in legal education across the empire, and later the Commonwealth. Sir Dennis Byron, in Chapter 13, describes his experience studying law and entering the Inns of Court alongside students from across the Commonwealth, and becoming part of ‘a legal association, with an international flavour, defined by common concepts of the rule of law’. These institutions and practices provided the models and the personal connections to support the forms of foreign judging adopted by common law states at the time of their independence and thereafter.

C International Involvement

A third potential influence, which, like the influence of the legal system is difficult to trace with precision, relates to the receptiveness or vulnerability of the jurisdiction to international involvement in its governance. Those who reject the use of foreign judges often claim that it is inconsistent with sovereignty.Footnote ⁶⁶ The use of foreign judges does not necessarily infringe international sovereignty (which protects states from interference by other states) or domestic sovereignty (the ultimate political authority and source of laws within a polity). A state and its people may, through law, authorise a foreign judge to exercise judicial power on behalf of the state without infringing sovereignty of either kind.Footnote ⁶⁷ Sovereignty claims do, however, have symbolic purchase, reflecting the idea that judging is a power of the state and so ought to be only exercised by judges who are also ‘of the state’. In this, assertions of sovereignty against foreign judges echo arguments against ‘foreign judges’ on international courtsFootnote ⁶⁸ and the citation of foreign law by domestic courts.Footnote ⁶⁹

Foreign judges tend to feature in jurisdictions that are, or have been, subject to a high degree of international influence, whether as a result of colonisation, geopolitical power dynamics, or intervention in response to conflict or perceived ‘state failure’. The provision of foreign judges is often framed as part of wider ‘rule of law assistance’ to developing states to support economic development or to rebuild judiciaries in conflict-affected contexts.Footnote ⁷⁰ Foreign judges are far more likely to travel from ‘core’ to ‘periphery’ jurisdictions, such that Australian and New Zealand judges serve on Pacific island courts, South Africans on courts in southern African states, and judges from the United Kingdom on newly established international commercial courts.Footnote ⁷¹ States in the Global North that use foreign judges are subject to their own geopolitical pressures, as seen for example in the small European states of Andorra and Liechtenstein which balance their foreign judges in equal number from powerful neighbouring states. Analysing the deployment and recruitment of foreign judges through the lens of international relations and the global political economy situates the practice of foreign judging as an instantiation of the relationships between states in a globalised, but unequal, world.

A Identity, Representation and the Judicial Role

Studies of judicial behaviour seek to understand whether and how identity attributes such as gender, race, religion and professional background affect the ways in which judges discharge their role and the qualities of the judiciaries on which they serve. The inclusion of foreign judges adds another, understudied, identity attribute to a judiciary. Foreignness carries layers of meaning. Section II of this chapter showed how foreignness might link to other identity characteristics such as nationality, place of origin or background. And, as Laurence Burgorgue-Larsen explains in Chapter 12, a judge has many different identity characteristics of which foreignness is only one, and perhaps not even the most significant one, when it comes to judging.

Literature on judicial diversity examines the importance of a judiciary whose composition reflects the community it serves, in terms of gender, ethnicity, religion and other identity attributes.Footnote ⁷⁴ The inclusion of foreign judges on a domestic court makes the judiciary ‘unreflective’ in the sense that it is composed, at least in part, of judges of a different nationality and sometimes also of a different ethnic and cultural identity to the community.Footnote ⁷⁵ This sense of difference is sometimes compounded by history, especially where foreign judges are drawn from former colonising powers. It is argued that reflectiveness enhances public confidence in the judiciary and the law because it visibly connects the court to the community. As Harry Hobbs shows in Chapter 10, the desire to promote local ownership and embed courts in the affected community led to the increasing inclusion of local judges and greater public confidence in international criminal justice. In some contexts, however, the presence of foreign judges does not signify disconnection from the domestic community so much as connections to a foreign or international community, which itself enhances public confidence: Hong Kong and Macau are examples.

Questions of identity and representativeness affect who is appointed a foreign judge. In the early years of independence, some African states undertook a process of ‘Africanisation’ of their judiciaries as a ‘stepping stone between a colonial and a localised Bench’.Footnote ⁷⁶ Recruiting black judges from other African states and the Caribbean in preference to white judges was a statement against the racial hierarchies of colonialism.Footnote ⁷⁷ In Chapter 19, Anna Dziedzic identifies a trend in some Pacific states to recruit judges from within the Pacific region or common law countries of the Global South, lessening reliance on the traditional (and former colonial) donor states. She argues that this provides a counter-narrative to colonialist framings of both self-government in the Pacific and hierarchies of global movement.

Another implication of some forms of foreign judging is the potential for it to ‘reimagine’ the judicial role in a distinctive way. Some cohorts of foreign judges develop their own communities which shape understandings of the foreign judge’s role. In Chapter 17, Paul Swanepoel explains how the judges who served as part of the Colonial Legal Service imagined a community around a particular understanding of the professional role of colonial judges. The long history of foreign judging across the Commonwealth, examined by Karen Brewer in Chapter 14, has fostered the idea of the ‘Commonwealth judge’ who feels at home in any number of Commonwealth jurisdictions. As judges are deployed as technical experts by international organisations in post-conflict contexts, a new category of ‘international judge’ may be emerging.Footnote ⁷⁸ The role of foreign judges – as perceived in their own eyes and by others – might differ in important ways to that of purely domestic or international judges. It might, for example, require emphasising those aspects of judging that facilitate the transfer of judges across different jurisdictions, such as professionalism and technical legal expertise, while de-emphasising those aspects of judging that tie judges to a jurisdiction and a community.Footnote ⁷⁹ In Chapter 22, Siraj Khan explains that the idea of the judge as conciliator is part of legal tradition in the Middle East and North Africa region, and grounds a judicial role on shared customary and religious values which transcend state borders. Alternatively, it might require judges to assume additional roles beyond adjudication. Sapna Reheem Shaila and Arturo Villagrán in Chapters 8 and 9 show how foreign judges might be positioned to perform a diplomatic or mediating function between local and international actors or to model particular kinds of judicial qualities. These judicial identities are not apposite in all circumstances and might be strongly resisted by actors in hosting jurisdictions and by judges themselves. The point is that judicial identities can form around understandings of foreignness, as well as through personal and professional connections between judges as a consequence of the practices of foreign judging.

B Independence and Accountability

Judges and judiciaries are expected to be independent and accountable. Judicial independence requires that an individual judge should not be biased towards a party or outcome of the case before him or her, and that the judiciary as an institution should be protected from unwarranted interference by the political branches of government or other powerful actors. Judicial independence is to be balanced with accountability,Footnote ⁸⁰ which, like independence, has both individual and institutional dimensions.Footnote ⁸¹ Judges are bound to uphold the law in accordance with their oath of office. Open courts, the provision of reasons for decisions and the appeal process support the accountability of judges in discharging this responsibility. Judges are also held to high standards of professional conduct, which may be enforced through judicial complaints mechanisms. In addition, as officials who exercise public power in a democracy, judges are – at least indirectly – accountable and responsive to the people.Footnote ⁸²

Foreign judging multiplies the entities involved in the provision of judicial services, such that independence and accountability ‘must be pursued simultaneously on several different social and political planes’.Footnote ⁸³ The government, legal profession and wider community in the jurisdiction in which foreign judges serve is one plane. A foreign judge’s home jurisdiction is another, encompassing the government authorities responsible for approving and facilitating judicial service overseasFootnote ⁸⁴ as well as the judiciary, legal profession and wider community whose attitudes can influence who serves as a foreign judge and where.Footnote ⁸⁵ A third plane consists of the international organisations and donor institutions that facilitate or fund positions for foreign judges. These disparate actors are both potential sources of influence as well as mechanisms for accountability for foreign judges.

The chapters highlight three issues of independence and accountability that apply in distinctive ways to foreign judges: procedures for selection and appointment; insecurity of tenure; and the dynamics of distance and membership in the community.

C Adjudication, Judicial Review and the Development of the Law

Several chapters explore the effect that the presence of foreign judges has on how courts adjudicate disputes and, in the process, apply and develop the law. In other work, Anna Dziedzic theorises a relationship between foreign judging and adjudication based on two dimensions of knowledge that foreign judges bring to their role.Footnote ¹⁰³ First, foreign judges face a knowledge gap, in the sense that, generally speaking, foreign judges will not have the same depth of knowledge of the law of the jurisdiction and the social and political context in which it operates as a local judge. Second, foreign judges have knowledge reach, in that they will have knowledge and experience of the legal systems of their home and perhaps other jurisdictions that expand the expertise of the court.

The knowledge gap gives rise to challenges in interpreting and applying the law in a way that responds to local context. As Sir David Baragwanath points out in Chapter 15, this challenge is not unique to foreign judges: in diverse, multicultural and pluralist societies, all judges must ‘look above the limits of one’s own education and experience, and search for answers congruent with the values of the unfamiliar society illuminated by a vision of its highest standards’. Foreign judges, however, are at a particular disadvantage, especially where the laws and legal systems differ from those of the jurisdiction in which they were educated and predominantly work. The difficulties are particularly acute in areas of law that are nationally distinctive and in legal pluralist jurisdictions which encompass legal systems and cultures with which judges are unfamiliar.Footnote ¹⁰⁴ Gonzaga Puas examines these issues in Chapter 26 on the Federated States of Micronesia. He explains how the dominance of the legal system by judges and lawyers from the United States has eroded the role of Indigenous custom in the resolution of legal disputes and inhibited the development of a distinctively Micronesian constitutional jurisprudence. This is despite provisions in the Constitution recognising Indigenous values and an explicit requirement that court decisions be consistent with the ‘customs and traditions, and the social and geographical configuration of Micronesia’.Footnote ¹⁰⁵

The issue is not simply foreign judges’ lack of knowledge about an unfamiliar legal system, but also the influence of guiding assumptions about law and the judicial role that apply in their home jurisdiction. Bal Kama explores these dimensions of judicial culture in Chapter 25 on Papua New Guinea, a legal pluralist country in which Indigenous custom is a source of law and where a transformative constitution gives judges expansive powers to intervene in the social development of the state. Kama argues that foreign judges, who are recruited mainly from Australia, tend to be unfamiliar with the history and intention behind Papua New Guinea’s transformative constitution and unduly influenced by the judicial philosophy of legalism predominant in Australia, and as a result are reluctant to take a more activist judicial role. In Chapter 21, Rachel Ellett identifies a similar dynamic in southern African jurisdictions, where foreign judges have tended to take a narrow, formalistic interpretation of the law, rather than pursue a more activist rights-based jurisprudence. For Ellett, this illustrates the ‘imported nature of the African state, the idea that it is floating above citizens rather than rooted in the identities, customs and values of the citizens’. This shows that knowledge is not the only dimension of foreignness that influences adjudication. One objection to the development of the law via judicial interpretation is that it is undemocratic, a concern that is particularly acute when a court exercises its power to interpret or invalidate legislation.Footnote ¹⁰⁶ The democratic objection justifies a limited and restrained approach to adjudication. Where a more activist judicial role is contemplated, however, one response to the democratic objection is to emphasise the democratic credentials of judges, who as members of the community can claim to understand and share in the aspirations and values of the people.Footnote ¹⁰⁷ Foreign judges lack this connection, further limiting the democratic legitimacy of a more activist judicial role.

It is not inevitable that foreign judges take a conservative approach. In Chapter 16, Michel Erpelding shows how the international composition of colonial mixed courts was used to argue in favour of judicial activism, because international judges could dissociate themselves from national interests and uphold the ‘treaty-based bill of rights’ (the economic rights and concessions granted to foreigners within the mixed courts’ jurisdiction). It may be that in some contexts, and perhaps notably where domestic judges have a mandate to enforce regional or international human rights law, conditions favour more ‘activist’ foreign judges. It is an area ripe for further theorising and study.

Literature on judicial behaviour emphasises the importance of institutional strength to the capability of courts and judges to adjudicate independently and effectively. It is argued that courts and judges should act strategically to maintain the viability and authority of judicial institutions, utilising techniques of incremental activism to avoid damaging political backlash on the one hand, and institutional incapacity and irrelevance on the other.Footnote ¹⁰⁸ Sir David Baragwanath in Chapter 15 describes this as managing competing dictates with la prudence et l’audace, avoiding both rashness and timidity. Alex Schwartz, in his study of Bosnia-Herzegovina, has argued that foreign judges are poorly situated to engage in strategic calculations, because they do not have local knowledge of the political and institutional context in which the court operates.Footnote ¹⁰⁹ The appointment of foreign judges for short terms or temporary visits might also prevent them taking a longer-term strategic approach to adjudication. Some chapters suggest that foreign judges’ mandate might militate against any such strategic role altogether. In Chapter 8, Sapna Reheem Shaila argues that in East Timor, the push to uphold ideal standards of judicial independence through the use of foreign judges who engaged in strong judicial review against government actions was counterproductive because in this transitional context, Timorese judges needed the support of charismatic political leaders in order to establish a strong judiciary in the long term. Constance Grewe, in Chapter 7, shows how the rationale for foreign judges (the pacification of ethnic conflict) in Bosnia-Herzegovina is at odds with the legitimacy of the court because the ‘realisation of the judges’ rationale helped to weaken or even undermine the court’s authority’. These studies suggest that a foreign judge’s capacity to engage in judicial strategy is limited not only by knowledge, but by the rationale for foreign judges and the roles expected of them.

While foreign judges might suffer from a knowledge gap in relation to local law and context, they bring knowledge of their own jurisdictions, and in some cases specialist knowledge of areas of law. Chapters 3 and 18 by Justice Joseph Fok and Simon Young respectively explain how in Hong Kong, foreign judges provide expertise on the common law as well as comparative knowledge of how it has developed in their home jurisdictions, which has been of great assistance to the Court of Final Appeal in developing the common law of Hong Kong. Similarly, a foreign judge expert in European law can share that knowledge with domestic courts in Europe. Hybrid criminal tribunals and international commercial courts take advantage of judges’ specialist expertise to ensure consistent or harmonised laws and procedures.Footnote ¹¹⁰ Even without the goal of harmonisation, Chief Justice Agyemang notes the general benefit of ‘pollinating’ judiciaries with lessons learned in other countries, as foreign judges share their experiences in judiciaries abroad and at home.Footnote ¹¹¹

There are ways for judiciaries to minimise the knowledge gap and associated legitimacy issues and maximise the benefits of knowledge reach. Two strategies that appear across the jurisdictions covered in this Handbook are first, to confine the competence or kinds of matters that foreign judges adjudicate; and second, to promote mixed benches of local and foreign judges.