Vol. 20 No. 12 (December, 2010) pp.707-714
SELECTING INTERNATIONAL JUDGES. PRINCIPLE, PROCESS, AND POLITICS.
By Ruth Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands. Oxford:
Oxford University Press. 256pp. Hardback. £60.00/$125.00. ISBN: 9780199580569.
Reviewed by Edward Gordon, retired lawyer and law professor, Honorary Vice
President, American Branch, International Law Association. Email: egordon23 [at]
gmail.com.
So methodically do four London-based legal scholars, Ruth
Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands build their case here
that, in addition to being a detached and scholarly treatise, theirs is also
something of a multicount indictment of the existing modus operandi for
selecting international judges, as well as a civilized call to completely
rethink how the process of selection should work.
The empirical
justification for the study is established at the outset. Only “limited, largely
anecdotal evidence . . . exists about the way judges are appointed to
international courts” (p.2), the authors observe, correctly. Their intention is
to produce “a systematic empirical picture of the workings of the judicial
appointments process” (p.3) for two of the most globally significant
international courts: the International Court of Justice (ICJ) and the
International Criminal Court (ICC). Given how thoroughly shrouded the process is
in self-serving stealth, I doubted that they could pull it off. But they do, and
then some.
The first part of the study describes the formal rules
governing the selection of judges to the two courts, most of the rules being
located in the two courts’ respective constitutive instruments. This is
conventional stuff, available elsewhere, though generally not as concisely
summarized as here. In fact, if only on this account, I would not be too
surprised if their summary supplants ones that have already found their way into
assigned and recommended reading materials for both introductory courses and
advanced seminars in international organizations, international courts and
international law.
But believe me, even if it does, that is not why this
book is going to become required reading among scholars, journalists, government
lawyers and policy analysts interested in international dispute-settling,
adjudicatory or norm-developing institutions. Rather, it is what their
imaginative and disciplined probing has uncovered or verified about how the
notoriously indulgent formal rules are actually applied in practice, at both the
national and international levels. No, it is not sensational enough to stop the
presses, but it is a revelation, all the same, and I doubt whether future policy
analyses of the selection of international judges, or of the role of governments
in it, are going to acquire credibility that fail to take it into account.
[*708]
Most of us have had an inkling or two long before now that
unbecoming shenanigans were going on in the selection process. Suspicion is one
thing; however, empirically based evidence is quite another. This is where the
authors break new ground – convincingly. With funding from the British Arts and
Humanities Research Council, they employed three ambitious and interactive
techniques to ferret out insider experiences and impressions. They undertook a
series of case studies of practices in nine specific countries in different
regions of the world; they distributed a questionnaire on national nomination
processes to “a wide range of international judicial, legal, and governmental
actors” (p.180); and they interviewed nineteen staff members (based in New York)
of Permanent Missions to the UN, and UN staff members of a range of countries to
elicit information on lobbying and election procedures. In total, “106
interviews of approximately one hour’s duration were conducted, which yielded
some 82 interview transcripts and 50 file notes” (p.184).
Interviewees
were evidently assured that their remarks would not be attributed to them by
name or by closely identifying description. The result is a conspicuous level of
candor, from persons in the pits of the processes, that by itself merits
professional plaudits to all those involved in the study. Equally deserving of
admiration is the manifest discretion with which Professor Mackenzie and her
colleagues have handled the candor, not least in resisting the temptation to
exploit it for juicy sound bites.
Parenthetically, and more out of a
sense of professional obligation than deep-felt conviction, I feel compelled to
recognize the potential for bias – and thereby the risk to the study’s
credibility – implicit in the discretionary authority the authors accorded
themselves in determining whose views to solicit, in choosing criteria for
weighing the relative importance of certain responses over others, and in
reaching some fairly sharp-edged conclusions from what are, after all, something
less than perfect data. Given that this looks to have been an exclusively
British project, national bias or a cultural agenda, intended or not, is almost
certain to be suspected and cannot entirely be ruled out. I mention these
caveats reluctantly, not only because theirs is easily the best
empirically-based material currently available outside foreign offices – which
are not about to share theirs – and because it tends to confirm one’s suspicions
about the sorry state of the international judicial appointment process, but
also because, given the political sensitivity of the information they solicited,
I am not sure how much more the authors could have done to dash such suspicions
as remain and yet still have encouraged enough of a free flow of intimate
intelligence to make their efforts worthwhile.
A number of points
Mackenzie, Malleson, Martin, and Sands make require – and receive –
acknowledgment that there are no principles or rules of general application
governing the selection of international judges; that no common agreement exists
as to what constitutes an ideal international judge, even as to the virtues of
judicial independence, or as to whether or to what extent professional training,
specific expertise or comparable prior judicial experience are essential or even
[*709] desirable; and that such selection criteria as may be presumed to exist
are seldom articulated and, when articulated, are celebrated principally, or
only, in lip service. Moreover, as they confirm, actual practice (as to
nominations and who else’s candidates to support) varies widely from state to
state, and from time to time and almost always takes place off the record with
every intention of staying that way.
One of the study’s most unsettling,
if not quite shocking, revelations is that lobbying for international
judgeships, unseemly and corrupting, has become standard practice, not only
among individual candidates, but by foreign offices and representatives of blocs
of states, as well, and that it goes on for months at a time. Vote-trading is at
the core of the campaigning: “In the ICJ and ICC most votes are based on
reciprocals, and states now feel a need to conclude them if they want to enhance
the prospects for their candidate. . . [T]hese agreements are largely motivated
by political considerations rather than merit” (p.122). Worse still, “no clear
distinction is made within the UN community between the requirements of a
judicial and non-judicial post. Indeed, it would appear that in many cases, the
former are traded and lobbied for like any other political position in the UN
system” (p.101). As to this aspect of their findings the authors conclude:
It is perhaps less the presence of politics per se in the international
judicial selection processes which is a cause for concern than the particular
nature of the politicization. It is both endemic and, in contrast to the US
Supreme Court, almost entirely lacking in public scrutiny or political
accountability. This potentially toxic combination threatens the long-term
stability, effectiveness and authority of international courts. In practice
states will not contemplate giving up control over elections; nor, arguably,
should powerful judicial decision-makers be selected through processes which are
wholly disconnected from elected governments. Nevertheless, we would argue that
urgent steps need to be taken to limit the growing and pervasive role of
extraneous political factors in order to ensure that politics does not overwhelm
the prospects for selecting the very best judges for the international courts
(p.179).
ICJ judges have generally been drawn from academe, national
courts, the diplomatic corps, or the national civil service, the authors report,
although as they also note, prior to their election to the Court a majority of
ICJ judges had served as legal advisers to foreign ministries. Complaints that
not enough of them have served as judges in national courts encounter the
rejoinder, among others, that such a background seldom assures familiarity with
international law and in any event is susceptible to a parochialism
inappropriate to a tribunal meant to accommodate many different legal systems.
Similarly, the reasoning goes, experience as judges on national criminal courts
seldom assures familiarity with international humanitarian law.
Too pat
this, not only because it serves merely to rationalize, not to explain, the
paucity of international judges conditioned by prior professional experience to
think like judges, but also because it just happens to play into the hands of
foreign office lawyers and career diplomats for whom a spot on an international
court is what the authors euphemistically refer to as a “natural [*710] part of
career progression” (p.58). Besides, too many incidents are occurring, notably
in international criminal courts – the ICC and ad hoc tribunals alike – in which
a lack of prior hands-on trial experience has proved detrimental to the handling
of, for example, tactically obstructive behavior, evaluation of the veracity of
witnesses or the reliability of written evidence, and similar forensic problems.
These matters are critical in the work of the ICC, where individuals, not states
as such, are on trial.
A central concern of the study is the why and
therefore of the informality that has become characteristic of nominations and
elections. The degree of informality is closely related to the level of
politicization and political influence at play, the authors report: the more
political, the more informal the process, and vice versa. “A recurring theme
across the interviews was the strong vested interest of governments in strictly
controlling the nomination process in order to influence the composition of
international courts” (p.65). Of nominations at the national level, they say:
“Usually there is no identified ‘selection pool’, only a single candidate who is
known to the decision-makers, and who may initiate and lobby for nomination”
(pp.64-65).
It is interesting to speculate just how much of the
politicization the authors describe was built into the genes of the two courts
from the moments of their respective conceptions. For the ICJ, this occurred
just before and after the First World War. The idea of establishing a permanent
international court was first discussed in detail, at the diplomatic level at
least, at the second Hague Peace Conference (1907). Agreement was widespread on
the desirability of creating a “permanent” court, that is, a standing
institution in which the same judges would hear and decide a succession of
cases, rather than, as had generally been the case with international
arbitration, convening a new panel to hear and decide each new case. But
agreement at this heady level of abstraction belied an utter lack of it as to
what kind of an institution the “court” should be, and thereby how and according
to which criteria its members should be selected and their contributions
measured.
Three altogether different models vied for adoption. The
Americans, under instructions from Secretary of State Elihu Root, and with
support from Great Britain, proposed an institution whose explicit prototype was
the U.S. Supreme Court, especially in its role as trier and decider of disputes
between individual states – which, after all, even if no longer technically
“sovereign” in an international sense, continued to be tenacious in resisting
perceived encroachments upon their presumed prerogatives by, among others, the
Supreme Court itself. Since over time the Supreme Court had prevailed over this
resistance, Root and his colleagues saw every reason to expect that a court like
it could succeed on the international level as well. All it had to be charged
with doing was hearing and determining the facts in a dispute, then faithfully
applying applicable rules of international law – let the chips fall where they
may.
For most of the delegates from civil law countries, though, where
the chips ended up falling was of the essence of the only function a permanent
international court [*711] could realistically be expected to serve, which was
to resolve international disputes in a diplomatic way, so as to dissipate
underlying hostile energies and thereby undermine nationalistic calls for resort
to armed conflict to settle disputes. To most statesmen at the time, a dispute
between sovereign states was ripe for settlement by third-party application of
international law, as Root was calling for, only when national policy happened
to harmonize with the narrow legal considerations upon which the award was
thought likely to turn. Rules of international law, as such, existed only in
consequence of the consent of states, were applied by each state for itself, and
could not be imposed against them by any superior authority with any due regard
to national sovereign prerogatives. To expect governments to cede the resolution
of matters of national interest to an external agency was just not realistic.
Root, on the other hand, saw diplomatic arbitration itself as unrealistic.
In his instructions to members of the U.S. delegation, he wrote:
Granting that diplomats who are engaged in an arbitration have the purest
motives, that they act in accordance with the policy they deem to be best for
the nations concerned in the controversy, assuming that they thrust aside
entirely in their consideration any interests which their own countries may have
in the controversy or in securing the favor or averting the displeasure of the
parties before them, nevertheless it remains that in such an arbitration the
litigant nations find that questions of policy, and not simple questions of fact
and law, are submitted to alien determination, and an appreciable part of that
sovereignty which it is the function of every nation to exercise for itself in
determining its own policy is transferred to the arbitrators. (Root 1907,
pp.33-34)
In fact, neither Root nor most other statesmen at the time were
invariably willing to grant the purest motives to arbitrators. Root could be
blunt in saying so, telling a group of professional arbitrators and peace
activists in 1912, for example, that
I do not think the difficulty that
stands in the way of arbitration to-day is any unwillingness on the part of the
civilized nations of the earth to submit their disputes to impartial decision. I
think the difficulty is a doubt on the part of civilized nations as to getting
an impartial decision. And that doubt arises from some characteristics of
arbitral tribunals, which are very difficult to avoid.
In the first place
these tribunals are ordinarily made up of by selecting publicists, men of public
affairs, great civil servants, members of the foreign offices, men trained to
diplomacy; and the inevitable tendency is, and the result often has been, that
the arbitral tribunal simply substitutes itself for the negotiators of the two
parties, and negotiates a settlement. Well, that is quite a different thing from
submitting your views of right and wrong, your views of the facts and the law on
which you base your claims to right, to the decision of a tribunal, of a court.
It is merely handing over your interests to somebody to negotiate for you; and
there is a very widespread reluctance to do that in regard to many cases; and
the nearer the question at issue approaches the verge of the field of policy,
the stronger the objection to doing that. (Root 1910, pp.11-12).
As it
happens, and sometimes overlooked today, neither the adjudicatory nor the
arbitral model was [*712] wholly satisfactory to small states, which, with ample
historical justification, feared that neither model would preclude the big
powers from dominating the selection of judges/arbitrators, with the judges
themselves ending up functioning as mere proxies for their national governments.
With this likelihood in mind, and with national vanity at the ready, the
delegate from one small state said that the selection of judges would have to
respect the principle of sovereign equality. The head of another small state
delegation reduced this code phrase to an explicit condition: every state party
to the permanent court would have to be entitled to choose one of the judges,
presumably one of its own nationals. The French delegate responded that this
envisioned a constituent assembly, not a court of law. In the end, the
Conference ended in stalemate, unable to agree on what kind of a institution
they were creating, and therefore on an appropriate process for selecting its
members, or on what qualifications they should ideally possess, or even, to the
point of farce, on what to name the thing, since each suggested name was
suspected of harboring a hidden agenda capable of insidiously pointing the
institution in the direction of one role or another.
The stalemate was
not broken until about a decade later, when Root – by this time back in private
practice and knee deep in national politics – and his British counterpart, Lord
Phillimore, proposed a compromise. To satisfy small states, the judges would be
elected by both the Assembly and the Council of what was to become the League of
Nations, the Assembly sure to be controlled by small states, if they could act
in unison, the latter by the big powers. To satisfy those, on the other hand,
who were concerned with the likelihood that this method would encourage
politicization, the compromise proposed that the nomination of judges would be
made, in each case, not by states themselves, but by groups of persons each
state were free to nominate to an institution established in 1902 called the
Permanent Court of Arbitration (PCA) which, its name notwithstanding, was – and
still is – not a court at all, but simply a registry of persons available to act
as arbitrators, should states wish to avail themselves of their services. Each
state party to the PCA was/is free to name four persons to the registry, persons
presumably suited by background, training and professional reputation to serve
as arbitrators. The Root-Phillimore compromise proposed that these “National
Groups of Four” would do the nominating, and then only after consulting with
professional groups within their own country. One could assume, could one not,
that persons deemed qualified to act as arbitrators would be more apt to be
concerned with potential nominees’ professional qualifications, and
correspondingly less influenced by political considerations, than governments
themselves would be, especially after consulting with other professionals.
The first part of the compromise was well-received and found its way into
the constitutive instruments of the institution subsequently created, the
Permanent Court of International Justice (PCIJ), as well as its post-World War
II successor, the ICJ. The second part proved controversial, however, and while
it is available as an option in both instruments, in neither is it obligatory.
In practice, it has been all but ignored by most states and reduced to a public
[*713] relations ritual in others. As Mackenzie, Malleson, Martin, and Sands
say,
The PCA national group or equivalent is often a bit-part player,
usually comprised of government representatives or those with strong links to
government. It frequently does not make the final nomination decision and may
not even be involved at all. There is generally no outside consultation or, if
there is, it is very limited. The lack of transparency limits accountability and
confines knowledge about the process to a very small group of insiders (p.65).
Other than in the U.S. and Great Britain, that is, a distinction
maintained and borne proudly within the ranks of the international law community
in the two countries for as long as I can remember. But shortly after OUP
formally announced publication of the Mackenzie study, and almost immediately
after China announced that its nominee to fill the vacancy created by the
resignation of Shi Jiuyong from the ICJ would be Xue Hanquin, a career
government lawyer serving at the time as deputy legal adviser in its foreign
ministry, the U.S., not to be outdone, announced that its nominee to fill the
vacancy created by the resignation of Thomas Buergenthal, the U.S. national on
the Court, would be none other than Joan Donoghue, a career government lawyer
serving at the time as the State Department’s Principal Deputy Legal Adviser.
As a matter of form, of course, the U.S. National Group of Four made the
nomination, not the U.S. government, much less the State Department. Still, one
could not help but notice that the Group’s four members consisted of the State
Department’s current Legal Adviser, two of his predecessors in that position,
and a former deputy legal adviser who himself had gone from that position to a
spot on the Court. Nor could one entirely overlook the fact that, after
sanctimoniously soliciting and then receiving recommendations from the
professional community, the Group ignored them.
Commenting in the popular
international law blog, Opinio Juris, on the nominee herself, Professor Roger P.
Alford (Pepperdine) spoke for many in the international law community in the
U.S. when he said: “Donoghue was an extremely safe choice for the State
Department lawyers to make . . . .[O]ne seriously doubts that [she] will be
voting against the United States any time soon.” Ave atque vale, Root-Phillimore
– but with plenty of spin on the vale.
As to the ICC, which has been
around for only a decade or so, while it is too soon to throw up one’s hands in
dismay, it is not too soon to wince at what Mackenzie and company report that
bear upon the selection of judges to it. If the ICC is meant to be a
professionally disciplined and depoliticized criminal court, conscientiously
applying and refining a still nascent body of international criminal law, it
clearly is going to need a change in the attitudes and processes used in
selecting its judges. [*714]
REFERENCES:
Root, Elihu.
1907. “The American Sentiment of Humanity,” in PROCEEDINGS OF THE NATIONAL
ARBITRATION AND & PEACE CONGRESS,, as quoted in D. P. Myres, “The Origin of the
Hague Arbitral Courts,” 1916, AMERICAN JOURNAL OF INTERNATIONAL LAW, 10: 270,
272.
Root, Elihu. 1910. “The Importance of Judicial Settlement,” in
PROCEEDINGS OF THE INTERNATIONAL CONFERENCE OF THE AMERICAN SOCIETY FOR JUDICIAL
SETTLEMENT OF INTERNATIONAL DISPUTES, at 11-12.
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© Copyright 2010 by the author, Edward Gordon.