Independence of International Courts and Appointment of Judges

02-02

Q. 2016.10
Can international courts be considerednfully independent while states play a decisive role in the appointment ofnjudges?

* Acknowledgement: the analysis below is largely based on the essay by Ruth Mackenzie: The Selection of International Judge, in The Oxford Handbook of International Adjudication, p. 737 ff.

With the proliferation of international courts and tribunals (hereinafter 『ICTs』), more and more attention has been attached to the procedures and criteria for appointment of judges in international courts, which will influence the effectiveness, legitimacy and independence of the courts (R. Mackenzie). Among these values, the question focuses on 『independence』, which, in the definition of Brown, means judges are free from external control or influence which prevent them from exercise their functions in an autonomous manner. The question is premised on the presumption that states actually play a decisive role in appointment of judges in the ICTs. If this is true, it is quite likely that state』s influence will also be transferred to the exercise of functions of the ICTs through the judges they appoint and thereby infringe on their independence.However, such a presumption is not without any doubt. As noted by Alter, since appointment of international judges are not generally controlled by one state, so international judges are institutionally not so subject to appointment politics as their domestic counterparts, but others (eg. R. Mackenzie) hold the opposite view. Therefore, this essay will first analyse whether it is true to argue that states play a decisive role in appoint judges and then consider possible measures to address the problem based on the nexus between judicial independence and judicial selection.

Thesis and Roadmap

This essay suggests to divide the questionninto three sub-questions: first, it will consider whether and to what extent itnis right to presume that states play a decisive role in appointment of judges (state』snrole in judicial selection); and then the essay will briefly address whethernand to what extent states can influence the functions of ICTs throughnappointment of judges (『nexus between judicial independence and judicialnselection』); finally, the essay will consider if the state involvement cannotnbe eliminated, whether there exist measures to ensure or improve thenindependence of ICTs and to what extent they have been put into practice. Bynanalysing these questions, this essay will argue that states indeed havensubstantial influence on appointing judges and elimination of such influence is impossible. Nonetheless, independence of judges can still be improved throughnadopting measures to ensure that candidates being elected by states fulfill minimumncriteria required by each ICT.

I. nSub-question I: how states play a role in appointment of judges

Appointment of judges generally isncomprised by two process: nomination of candidates at national level andnelection of candidates at an international level. Both of the two processes arencharacterized with political concerns. Other aspects where states can influencenappointment of judges will also be addressed.

Nomination

The power to nominate judges at national level is at the verynwide discretion of states. For most ICTs (eg. ITLOS, ECHR, ECJ etc) candidatesnare nominated by states, while in ICJ, the nomination is by national group innPCA (or national group established specifically for nomination of ICJ judges).nHowever, states still play a decisive role in nominating judges for ICJ. (P.nSands,[2]nR Mackenzie et al.[3]) AlthoughnICJ issues guidelines to encourage states to firstly seek consultations withnits highest courts of justice, law faculties and national academies, therenexist no formal procedures in most countries to ensure that such consultationsnactually take place and it is widely acknowledged that in many statesnnomination process are highly politicized and lack transparency.

Elections

After the nomination process, candidates will be elected innan intergovernmental organization, such as UNGA (ICTY, ICTR, ICJ)and UNSCn(ICJ), conference for state parties to UNCLOS (ITLOS), Assembly of StatenParties to the Rome Statute (ICC). The electors are states and the processes areninevitably politicized. (Mackenzie) Also, elections of judges are treated asnelections of political representatives and vote trading between states arenfrequent (International courts and tribunals interest group).

Other aspects where states influencenappointment of judges

Although there exist no formal requirements in governingninstruments of ICTs to reserve seats for some states in the bench, it is clearnin practice that certain states can virtually guarantee a seat in some courts,nsuch as UNSC P5 members in the ICJ, US and EU in the WTO, major NATO states andnmembers of P5 in the ICTY (but it is noted that for several years, there was not Russian judge in the ICTY), etc. In such cases, it is quite fair to attribute thenreservation of seats to political power intervention. In other courts, althoughnthere is no 『reserved』 seat as such, certain states appear to have a notablenrecord of success in getting their judicial candidates selected (eg. Japan innthe ICJ). In such cases, it is argued by R. Mackenzie that such success maynalso be attributable to political considerations.

Considering the above analysis, it is fair to argue thatnstates play a decisive role in appointment of judges. Then we need to considernhow states』 power is transferred from appointment of judges to exercise ofnfunctions by the ICTs and thereby influencing independence of ICTs. To dealnwith this issue, we need to consider the nexus between judicial imdependence andnjudicial selection.

II. nSub-question II: whatnelements in appointment of judges might influence independence of ICTs?

It is doubtless state』s influence can be transferred tonexercise of functions by ICTs through the judges they have nominated andnelected, as Elsig and Pollack』s research shows that states tend to nominatenjudges whom they deem to promote state interests as well as those who may sharenthe state』s views on the appropriate scope of the court』s functions.[4]

nThis essay will consider how such a transfer of state influence actually operatenin light of the nexus between judicial independence and judicial selection. Thisnfollow analysis will demonstrate that some elements of judicial selection are conducivento , while others may be detrimental to the independence of the ICTs.

Elements in judicial selection that are conducive tonindependence

Judicial independence is positively related with the meritsnof judges. Alter』s research demonstrates the significance of personalnreputation and expertise of the judges in enhancing independence of ICTs.[5]nIn other words, both the merits of individual judges and expertise of the benchnas a whole are elements conducive to independence. To clarify, typical criterianrelating to qualification of individual judges include high moralncharacter/integrity, possession of qualifications in their respective countriesnfor appointment to highest judicial office, or status of jurisconsults or recognizedncompetence in international law (eg. ICJ, ITLOS). Some require specialnexpertise in area of law relevant to the court in question (eg. ICC requiresncompetence and experience in criminal law or certain areas of internationalnlaw, eg. IHL and IHRL). In relation to composition of bench, a court』s governingninstrument may make explicit range of expertise which should be represented on thencourt as a whole. (eg. CCJ requires 3 judges have expertise in international trade law; ICC requires a mix of judges with expertise in criminal law and procedure andnrelevant areas of international law) Some of the criteria tend to be vague andnundefined, a lack of which may not guarantee that candidates for judicialnoffice fulfil the minimum criteria for office, and therefore might be harmfulnto independence of ICTs.

Elements in judicial selection that are detrimental tonindependence

Noteworthy, independence is not the only value pursued bynICTs, others include effectiveness and legitimacy, which are considered to benensured with fair representativeness of the tribunal』s composition. Ulfsteinnargues that 『requirement of independence… must, however, be balanced with thenneed for representativeness of the tribunals』 composition』. Composition of internationalncourts require representativeness of legal systems, geographical distribution,ngender of representation. It is noted that they are important factors for ensuringnlegitimacy of the court but according to Ulfstein they might be conflictingnwith the value of independence.

There also exist other factors influencing independence ofnjudges , especially tenure and possibility of re-election. Relatively short-termsnof office coupled with the possibility of re-election give rise concerns aboutnjudicial independence. (Mackenzie, p. 753) For example, states may sanctionnjudges who have not been seen as supportive of national interests by failing tonnominate them for reappointment. Reappointment of judges may also be influencednwhen there is a change of government in nominating states.

III. nSub-question III: how tonimprove independence

In light of the analysis in part II, the solutions tonimprove independence are clear: to strengthen the elements of selection ofnjudges which are conducive to independence of the ICTs and reducing the role ofnelements which are detrimental to independence of the ICTs.

Measures to eliminate state interference

It seems straightforward that the concerns of independencenwill be resolved through eliminating state interference. For example, CCJnjudges are not selected by states but by a regional judicial and legal servicencommission composed of members from, inter alia, bar associations, civilnsociety, serving and former judges and academics. However, absolutely eliminatingnstate influence would be impossible and the case of CCJ seems to be the onlynexample existed in this regard .

Measures to improve independence without eliminating stateninvolvement

Considering the nexus between judicial impendence andnjudicial selection, it is possible to improve the independence withoutneliminating states involvement, which is to ensure and strengthen the role ofnthe elements in judicial selection (namely, expertise of candidates) that arenconducive to independence, in other words, to guarantee that there exist a big pool ofnqualified candidates among whom political choice can be exercised (Abi-Saab).n

To ensure that candidate for judicial office fulfill thenminimum criteria for office set out in the statute and other governing instrumentsnof the court in question, the following methods can be adopted:

1. nThe quality of candidatesncan be guaranteed through detailing the requirements for integrity andnexpertise.

CCJ provides an example of more detailednrequirements, specifying minimum qualifications in terms of years of experiencenas a judge (5 years) legal practitioner, or teacher of law(15 years). As to thenrequirement of moral character or integrity, it is suggested that more detailednstandards of judicial ethics should be issued. For example, the internationalnBar Association Human Rights Institute elaborated upon the personal qualitiesnthat holders of international judicial office should display following thenapproach of Banglalore Principles of Judicial Conduct.

2. nThe quality of candidatesncan be guaranteed through formalizing the nomination process.

More specific guidelines (eg. procedures ofnconsultation before nomination) can be issued. This can be contained in statutenof courts or issued by electoral bodies (eg. Parliamentary Assembly of the CoEnprovides guidance for nominations to the ECHR). The guidance provided by PACE proves to be useful in improving the transparency of nomination process, and itnyields a national slate of well-qualified candidates. As noted above, althoughnICJ Statute has provided such guidance, it is doubtful whether they actuallynput into practice. It is therefore suggested the domestic nomination procedurenshould be more formalized and transparent. For example, a number of states sought to formalizennational nomination process by drawing upon procedures for nominating domestic judges. Besides, a number of Council of Europe states advertise vacancies for nominees to thenECtHR. The UK also applies this to other international judicial vacanciesn(ECJ, ICTY and the ICC).

3. nThe quality of candidatesncan be guaranteed through establishing 『screening mechanisms』

For example, CoE Committee of Ministers in 2010 establishednan advisory panel of experts to advise state parties whether their candidatesnmeet the criteria for appointment set out in the ECHR before the list ofncandidates is transmitted to the PACE for consideration. In 2011, the ASP to the ICC agreed to establish an advisoryncommittee on nominations, as enabled by Art. 36 (4)(c) of the ICCSt, to facilitatenthat the highest-qualified individuals are appointed as ICC judges. Similar screening process has also existed for some time in Court of Justice of the European Union (ECJ). The advisory panelnto give opinions on candidate』s suitability to perform duties as judges may benparticularly important in the context of ECJ as judges are appointed by 『commonnaccord』, which effectively give each member state a power of appointment if there is no screening mechanism in place. (Mackenzie, p. 753.)

4. nStates』 influence can alsonbe reduced through extending the tenure of judges.

It is suggested that a non-renewable long terms of officenshould be adopted. (suggestion of Institute Droit International; ECHRnreplaced six-year terms of office plus possibility of re-election with ansingle nine-year term)

Conclusion

As demonstratednin this essay, the answer to the question is not quite straight-forward. Thenmain points can be summarized as follows: (1) The presumption in the questionnis right that states play a decisive role in appointment of judges. (2) States』ndecisive role could hardly be eliminated from the process and the onlynexception may be the case for the CCJ. (3) Even though states』 role could notnbe eliminated, there exist measures to improve independence of the ICTs, whichnis to strengthen the elements in judicial selection that are conducive to thenimpartiality of the ICTs. (4) The main method can be summarized as to ensurenthat there exist a big pool of qualified candidates among whom political choicencan be exercised. (5) Specific methods include issuing guidelines for domesticnnomination process, establishing a screening mechanism between nomination andnelection, extending the tenure of judges, etc.

[2] P Sands, 『Global Governance and the International Judiciary:nChoosing our judges』 (2003) 56 Current Legal Problems 481;

[3] R Mackenzie et al., Selecting International Judges: Principle,nProcess and Politics (OUP 2010) at 63-99.

[4] See M Elsig and MA Pollack, 『Agents, Trustees and InternationalnCourts: The Politics of Judicial Appointments at the WTO』, EJIR, 2012.

[5] KJ Alter, 『Agents or Trustees? International Courts in theirnPolitical Context』 (2008) 14 EJIR 33.