UCL FACULTY OF LAWS
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:
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Professor Philippe Sands QC, Director CICT, Faculty of Laws, UCL (Principal Investigator)
•
Professor Kate Malleson, Queen Mary, Department of Law (Principal Investigator)
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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 growing 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 strengthen the international rule
of law through the development of appropriate judicial selection processes and the promotion of judicial
independence and greater diversity in the international judiciary.
The aims and objectives of this project are to identify:
•
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The way that 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 anonymised 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
Chief Justice Beverley McLachlin
Canada; Chief Justice
Eduardo Valencia-Ospina
Colombia; former ICJ Registrar
Sir Shridath Surendranath Ramphal
Guyana; former Commonwealth Secretary General
Professor Peter Russell
Canada; University of Toronto
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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
th
Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50 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
th
Justice Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50 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)
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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-Opsina, Eduardo ‘Editorial Comment’ (2002) 1(1) The Law and Practice of International Courts and
Tribunals 1-12
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