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
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
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