Selecting International Judges Principle, Process, and Politics

by Mackenzie, Ruth; Malleson, Kate; Martin, Penny; Sands QC, Philippe

• ISBN13: 9780199580569
• ISBN10: 0199580561
• Format: Hardcover
• Copyright: 2010-08-13
• Publisher: Oxford University Press

Summary

This book examines the way international court judges are chosen. Focusing principally on the judicial selection procedures of the International Court of Justice and International Criminal Court, it provides the first detailed examination of how the selection process works in practice at national and international levels: what factors determine whether a state will nominate a candidate? How is a candidate identified? What factors influence success or failure? What are the respective roles of merit, politics, and other considerations in the nomination and election process? The research was based on interviews, case studies and survey data in a range of different states. It concludes that although the nature and quality of nomination and election processes vary widely, a common theme indicates the powerful influence of domestic and international political considerations, and the significant role of a small group of diplomats, civil servants, lawyers, and academics, often without transparency or accountability. The processes allow overt political considerations to be introduced throughout the decision-making process in ways that may detract from the selection of the most highly qualified candidates and, ultimately, undermine independence. This is particularly evident in the election campaigning that has become a defining feature of the selection process, accompanied by widespread vote trading and reciprocal agreements between states. The effect of these practices is often to undermine the role of statutory selection criteria and to favour candidates from more politically powerful states. The book reviews new judicial selection models adopted or proposed in other international and regional courts, and considers a number of proposals for change to promote more independent, transparent, and merit-based nomination and election procedures.

Author Biography

Ruth Mackenzie is senior lecturer in international law at the University of Westminster, London. She was formerly principal research fellow and deputy director of the Centre for International Courts and Tribunals at UCL's Faculty of Laws and remains a senior associate of the Centre. Prior to joining UCL in 2002, Ruth Mackenzie was director of the Biodiversity and Marine Resources programme at the Foundation for International Environmental Law and Development in London. Kate Malleson is Professor of Law at Queen Mary, University of London. Her main research interests are the judiciary, the legal system and the constitution. She has a particular interest in judicial selection processes and the challenge of increasing diversity in the composition of the judiciary. She is the author of a wide range of publications on the judiciary and the legal system including: Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World, 2006 (co-editor with Peter Russell), Toronto University Press; The Legal System, 2010, Oxford University Press; and The New Judiciary: The Effects of Expansion and Activism, 1999, Ashgate Press. Penny Martin is an Australian solicitor and researcher. Her main research interests are in public international law, international human rights law and international dispute resolution, with a particular focus on implementation and institutional design. From 2006-2009 she was a Research Fellow at the Centre for International Courts and Tribunals at University College London. Philippe Sands is Professor of Law and Director of the Centre on International Courts and Tribunals in the UCL Faculty of Laws, and a key member of staff in the Centre for Law and the Environment. His teaching areas include public international law, the settlement of international disputes (including arbitration), and environmental and natural resources law. He has previously held academic positions at the University of London's School of Oriental and African Studies, Kings College London and University of Cambridge and was a Global Professor of Law at New York University from 1995-2003. He was co-founder of FIELD (Foundation for International Environmental Law and Development), and established the programmes on Climate Change and Sustainable Development. He is a member of the Advisory Boards of the European Journal of International Law and Review of European Community and International Environmental Law. As a barrister he has extensive experience litigating international cases.

Table of Contents

Foreword	p. vii
Series Editor's Preface	p. ix
Preface and Acknowledgements	p. xi
List of Abbreviations	p. xiii
Introduction	p. 1
The International Court of Justice and the International Criminal Court in Historical Context	p. 7
Introduction	p. 7
From ad hoc arbitration to permanent courts of justice	p. 10
The International Court of Justice	p. 17
The International Criminal Court	p. 19
Conclusion	p. 22
The Composition of the International Courts	p. 24
Introduction	p. 24
General selection criteria for the bench	p. 26
Individual selection criteria for the ICJ and ICC	p. 49
Conclusion	p. 60
The Nomination Process	p. 63
Introduction	p. 63
ICJ and ICC nomination rules	p. 66
Nomination bodies	p. 69
ICJ and ICC nominations in action	p. 73
Conclusion	p. 98
The Election Process	p. 100
Introduction	p. 100
ICJ and ICC election rules	p. 102
The role of the UN regional groups	p. 105
Campaigning	p. 110
Vote-trading	p. 122
The voting process	p. 128
Trends and Reforms	p. 137
Introduction	p. 137
Transparency	p. 137
Independence and non-politicization	p. 144
Competence and merit	p. 152
Diversity and representation	p. 161
Conclusion	p. 171
Conclusions	p. 173
Summary of findings on the ICC and ICJ	p. 173
The broader relevance of the findings-trends and reforms	p. 175
Research Methodology	p. 180
Background	p. 180
Questionnaires	p. 181
Interviews in New York	p. 181
Case studies	p. 182
The Jurisdiction and the Judicial Selection Procedures of the ICJ and ICC	p. 186
The jurisdiction of the International Court of Justice	p. 186
The nomination and election of ICJ judges	p. 187
The jurisdiction of the International Criminal Court	p. 191
The nomination and election of ICC judges	p. 192
International Criminal Court Assembly of States Parties: Resolution ICC-ASP/3/Res. 6	p. 197
Nomination of candidates for judges	p. 197
Election of judges	p. 199
Judicial vacancies	p. 201
Illustrative tables of minimum voting requirements	p. 202
Sample ballot paper: election of 6 judges of the ICC	p. 204
Bibliography	p. 205
Index	p. 219
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