UCL FACULTY OF LAWS
Centre for International Courts & Tribunals

Centre for International Courts & Tribunals

THE CENTRE FOR
INTERNATIONAL COURTS & TRIBUNALS

   
PROCESS AND LEGITIMACY IN THE NOMINATION, ELECTION AND APPOINTMENT OF INTERNATIONAL JUDGES
  • How are international judges nominated and elected?
  • Who is involved in appointing international judges and what considerations are at play?
  • Could the current procedures and practices be improved?

Summary

The Centre for International Courts and Tribunals (CICT) at UCL is undertaking a three-year AHRC grant funded research project entitled Process and legitimacy in the nomination, election and appointment of international judges. The research team comprises:

  • Professor Philippe Sands QC, Director CICT, Faculty of Laws, UCL (Principal Investigator)
  • Professor Kate Malleson, Queen Mary, Department of Law (Principal Investigator)
  • Ruth Mackenzie, Deputy Director CICT and Principal Research Fellow, Faculty of Laws, UCL
  • Penny Martin, Research Fellow, CICT, Faculty of Laws, UCL
  • Kate Barber, Administrator, CICT, Faculty of Laws, UCL

More than 30 international or regional courts now exist. International judicial activity now encompasses trade, investment, human rights, war crimes, and issues of general international law. International courts increasingly impact on legal and judicial developments at the national level. Yet relatively little is known about how international judges are appointed.

The extension of the international judicial function mirrors developments at the national level. As judges play a greater role in policy decisions and rights adjudication at the national level, balancing democratic accountability with judicial independence has attracted increasing attention. Similarly, at the international level, questions have arisen as to the appropriate composition and means of selection of the international bench. A broad debate is underway about how to enhance the legitimacy and competence of courts and the international rule of law, in particular, by developing appropriate judicial selection processes and promoting judicial independence and greater diversity in the international judiciary.

The aims and objectives of this project are to identify:

  • How candidates for international judicial office are nominated at the national level; and
  • How the election process takes place at the international level.

The analysis of empirical data on these processes will make a contribution to policy dialogue seeking to enhance the legitimacy, competence and credibility of international courts.

The project runs from March 2006 to February 2009.

The research

In international courts, judicial selection generally comprises two distinct phases: (i) nominations at the national level (directly by states or, in the case of the International Court of Justice (ICJ), by a state’s national group in the Permanent Court of Arbitration); and (ii) the election of judges from candidates by intergovernmental political bodies.

Governing instruments of international courts typically establish criteria to be fulfilled by individual judges, as well as criteria regarding the composition of the bench as a whole (e.g. geographic representation). However, it is not clear how these criteria are monitored or applied in practice, at either the nomination or election stage. Anecdotal evidence suggests that international judicial elections are highly politicised affairs. While some mechanisms to review international judicial nominations against objective criteria have been envisaged (such as the Advisory Committee provided for in the International Criminal Court (ICC) Statute), they have rarely been used in practice, except in regional judicial bodies such as the Caribbean Court of Justice and the European Union Civil Service Tribunal.

Very little academic research has been undertaken on this issue. Some recent research addresses the independence of the international judiciary, but there has been virtually no study of the national nomination processes that determine the ‘pool’ from which international judges are drawn, and relatively little analysis of international judicial election processes. This research will provide the first empirically based analysis of the selection process at the international court level: data and analysis that is currently lacking in academic and policy literature in this area. The objective of the project is not to call into question the appointment of individual judges, rather it is to bring to light, understand and make recommendations on the general processes for nominations and elections.

The project will focus on the nomination and election procedures for appointments to the ICJ and ICC. It will also make some comparative reference to the nomination and election procedures for other courts and tribunals at the national and international level, as appropriate. The project will use a range of research methods including an initial literature review; analysis of primary materials; questionnaire survey; interviews with delegates at intergovernmental meetings; in-depth country studies based primarily on interview data; and consideration of comparative perspectives based on expert meetings.

The project will seek to take into account the diversity of legal cultures, political systems and economic and social conditions across different countries, and will seek to ensure that a balanced and representative investigation is undertaken.

In light of the sensitivities of the issues raised by the research, the interviews and surveys undertaken during the project will be dealt with on a fully confidential basis (unless otherwise agreed). The research team will maintain confidentiality and discretion in handling the information gathered during the project and will fully inform participants as to the use of that information.

By the conclusion of the project at the end of February 2009, the outputs of the project will include a published monograph, journal articles and an international policy briefing document.

Advisory Committee

The project is being conducted under the guidance of an Advisory Committee. The members of the Committee are as follows:

  • Lord Woolf (Chair) (UK); former Lord Chief Justice
  • Florentino Feliciano (Philippines); former WTO Appellate Body member
  • Gilbert Guillaume (France); former ICJ President
  • Kamal Hossain (Bangladesh); Senior Advocate, Supreme Court of Bangladesh; Commissioner, United Nations Compensation Commission
  • Chief Justice Beverley McLachlin (Canada); Chief Justice
  • Eduardo Valencia-Ospina (Colombia); former ICJ Registrar
  • Sir Shridath Surendranath Ramphal (Guyana); former Commonwealth Secretary General
  • Pemmaraju Sreenivasa Rao (P.S.Rao)(India); former member of the International Law Commission (1987-2006)and Retired Additional Secretary and the Legal Adviser of the Ministry of External Affairs, India
  • Professor Peter Russell (Canada); University of Toronto
  • Tuiloma Neroni Slade (Samoa); former Ambassador to UN and former ICC Judge
  • William Taft IV (US); former US Legal Adviser
  • Professor Elizabeth Wilmshurst (UK); International Law Programme, Chatham House
  • Ambassador Xue Hanqin (China); Ambassador to The Netherlands

The role of the Advisory Committee is to provide overall guidance and strategic advice on the conduct of the research. However, ultimate responsibility for the project and its outputs rests with the research team.

Further information

Further information about the progress of the research will be posted on this website in due course. If you would like more information about the project, please contact Ms Penny Martin, CICT Research Fellow, on email p.martin@ucl.ac.uk.

Selected References

  • Abi-Saab, Georges ‘Ensuring the Best Bench: Ways of Selecting Judges: Presentation by Professor Georges Abi-Saab’ in Peck, Connie and Roy Lee (eds.) Increasing the Effectiveness of the International Court of Justice Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (The Hague: Martinus Nijhoff Publishers/UNITAR, 1997) 166-188
  • Amerasinghe, Chittharanjan ‘Judges of the International Court of Justice – Election and Qualifications’ (2001) 14(2) Leiden Journal of International Law 335-348
  • Blokker, Niels and Sam Muller ‘The 1996 Elections to the International Court of Justice: New Tendencies in the Post-Cold War Era’ (1998) 47(1) International and Comparative Law Quarterly 211-223
  • Damrosch, Lori Fisler (ed.) The International Court of Justice at a Crossroads (Dobbs Ferry, New York: Transnational Publishers Inc., 1987)
  • Damrosch, Lori Fisler ‘Ensuring the Best Bench: Ways of Selecting Judges: Commentary by Professor Lori Fisler Damrosch’ in Peck, Connie and Roy Lee (eds.) Increasing the Effectiveness of the International Court of Justice Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (The Hague: Martinus Nijhoff Publishers/UNITAR, 1997) 188-201
  • Damrosch, Lori ‘The Election of Thomas Buergenthal to the International Court of Justice’ (2000) 94(3) American Journal of International Law 579-82
  • Falzon, Neil, Matthias Goldmann and Ketevan Khutsishvili (eds.) Nomination and Election of Judges to International Courts: A Comparative Study (Brussels: The European Law Students’ Association Legal Research Group, 2002)
  • Harland, Christopher ‘International Court of Justice Elections: a Report of the First Fifty Years’ (1996) 34 Canadian Yearbook of International Law 303-367
  • Ingadottir, Thordis ‘Nomination and Election of Judges’ in Ingadottir, Thordis (ed.) The International Criminal Court: Recommendations on Policy and Practice: Financing, Victims, Judges, and Immunities (Ardsley NY: Transnational Publishers, Inc, 2003) 145-182
  • Lachs, Manfred ‘Some Reflections on the Nationality of Judges of the International Court of Justice’ (1992) 4 Pace Yearbook of International Law 49-68
  • Lavelle, Roberto ‘Nationality as a Factor in the Election of the Members of the International Court of Justice, with Particular Reference to Occasional Elections’ (1996) 29(2) Revue belge de droit international 625-632
  • Lee, Roy (ed.) The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International/UNITAR, 1999)
  • Limbach, Jutta et al. Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights (London: INTERIGHTS, 2003)
  • Lowe, Vaughan and Malgosia Fiztmaurice (eds.) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996)
  • Mackenzie, Ruth and Philippe Sands QC ‘International Courts and Tribunals and the Independence of the International Judge’ (2003) 44(1) Harvard International Law Journal 271-285
  • Mackenzie, Ruth and Philippe Sands QC ‘Judicial Selection for International Courts: Towards Common Principles and Practices’ in Malleson, Kate and Peter Russell (eds.) Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (Toronto: University of Toronto Press, 2006) 213-237
  • McWhinney, Edward ‘Law, Politics and "Regionalism" in the Nomination and Election of World Court Judges’ (1986) Fall 31(1) Syracuse Journal of International Law and Commerce 1-28
  • Robinson, Davis ‘The Role of Politics in the Election and the Work of Judges of the International Court of Justice’ (2003) 97 American Society of International Law Proceedings 277-282
  • Romano, Cesare ‘The Judges and Prosecutors of Internationalized Criminal Courts and Tribunals’ in Romano, Cesare, André Nollkaemper and Jann Kleffner (eds.) Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia, International Courts and Tribunals Series (Oxford: Oxford University Press, 2004) 235-270
  • Rosenne, Shabtai ‘Elections of Members of the International Court of Justice: Late Nominations and Withdrawals of Candidacies’ (1976) 70 American Journal of International Law 546
  • Rosenne, Shabtai ‘Election of Five Members of the ICJ in 1981’ (1982) 76 American Journal of International Law 364-370
  • Rosenne, Shabtai The Law and Practice of the International Court, 1920–2005, 4 Volumes, 4th edn. (The Hague: Martinus Nijhoff, 2006)
  • Rwelamira, Medard ‘Composition and Administration of the Court’ in Lee, Roy (ed.) The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International/UNITAR, 1999) 153-174
  • Sands, Philippe ‘Global Governance and the International Judiciary: Choosing Our Judges’ (2003) 56 Current Legal Problems 481-504
  • Sands, Philippe, Ruth Mackenzie and Yuval Shany (eds.) Manual on International Courts and Tribunals (London: Butterworths, 1999)
  • Valencia-Ospina, Eduardo ‘Editorial Comment’ (2002) 1(1) The Law and Practice of International Courts and Tribunals 1-12

Version: January 2007