C. How or the procedure for selection
2. Candidacy or nomination
117. The selection of adjudicators may start with a “nomination” or “candidacy”.
With these terms we refer to the step or phase by which an individual’s name is formally put forward in the selection process. Once “nominated”, the individual officially becomes a candidate in the process which may (or may not) lead to his or her election.
118. This phase is not present in the selection procedures of all courts and tribunals. Thus, in certain courts and tribunals, members are appointed directly by the treaty parties, either unilaterally
271or through a joint committee,
272without any prior formal nomination process. In arbitral institutions which have a roster or list of adjudicators, members are normally directly designated or appointed to those rosters by States or other entities without any nomination or other pre-appointment phases.
273By contrast, a nomination phase does exist in other courts and tribunals, such as the ECtHR, ICJ, or ITLOS.
appear to be no examples of public hearings of candidates to international adjudicatory bodies.
271 See e.g. Claims Settlement Declaration, Art. III (1) (whereby the contracting parties each appoint directly one third of the tribunal’s members).
272 See e.g. CETA, Art. 8.27.2 (“The CETA Joint Committee shall, upon the entry into force of this Agreement, appoint fifteen Members of the Tribunal. Five of the Members of the Tribunal shall be nationals of a Member State of the European Union, five shall be nationals of Canada and five shall be nationals of third countries.”); EU-Vietnam FTA, Art.
12(2) (“[T]he Trade Committee shall, upon the entry into force of this Agreement, appoint nine Members of the Tribunal [established pursuant to Art. 12.1]. Three of the Members shall be nationals of a Member State of the European Union, three shall be nationals of Vietnam and three shall be nationals of third countries”).
273 For example, with regard to the Panel of Arbitrators and Conciliators that is maintained by ICSID, each Contracting State unilaterally appoints four persons to each Panel, and the ICSID Chairman designates 10 persons to each Panel. See ICSID Convention, Art. 13. In similar fashion, each member State of the PCA is entitled to elect four persons, who “are inscribed, as Members of the Court, in a list” maintained by the International Bureau of the PCA. The persons on such list in turn form a panel of potential arbitrators (1907 Hague Convention, Art. 44). In CAS, arbitrators are appointed to the list by the International Council of Arbitration for Sport, on the basis of names “brought to [its]
attention” by a number of other entities. See CAS Code, Art. S14 (“The ICAS [International Council of Arbitration for Sport] shall appoint personalities to the list of CAS arbitrators with appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, whose names and qualifications are brought to the attention of ICAS, including by the IOC [International Olympic Committee], the IFs [International Federations], the NOCs [National Olympic Committees] and by the athletes' commissions of the IOC, IFs and NOCs).
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119. If States were to consider a nomination phase, they would have to resolve the following main questions: (i) Who nominates?; (ii) Must the nomination phase provide for a mandatory consultation phase?; (iii) Is the nomination subject to some form of screening or vetting by an external supranational body? This section reviews the first question, while the other two are dealt with in sections III.C.3 and III.C.4 respectively.
120. Who is to put forward a candidacy or nomination? Based on the rules and practices in existing courts and tribunals, three main options may be discerned.
121. The first option is that each treaty party puts forward one or more nominees. Under the ITLOS Statute, for instance,
Each State Party may nominate not more than two persons having the qualifications prescribed in article 2 of this Annex. The members of the Tribunal shall be elected from the list of persons thus nominated.274
Nominations are also put forward by treaty parties for the election of judges at the CJEU,
275the ECtHR,
276the African Court,
277and the Arab Investment Court.
278122. As a second option, nominations may be placed in the hands of a different entity. This is notably the case for the selection of ICJ judges, where the PCA national groups, i.e. the groups of four persons designated by their respective governments pursuant to the 1907 Hague Convention, may advance up to four nominees, not more than two of whom shall be of the group’s own nationality.
279In the institutional design of the ICJ Statute, nominations were placed “at one
274 ITLOS Statute, Art. 4(1).
275 TFEU, Arts. 253-255.
276 ECHR, Art. 22 (“The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party”).
277 Protocol on the African Court, Art. 12(1) (“States Parties to the Protocol may each propose up to three candidates, at least two of whom shall be nationals of that State”).
278 Unified Agreement for the Investment of Arab Capital in the Arab States (“Unified Agreement”), 26 November 1980, League of Arab States Economic Documents No. 3, Art. 28(2) (“The Court shall be composed of at least five judges and several reserve members, each having a different Arab nationality, who shall be chosen by the Council from a list of Arab legal specialists drawn up specifically for such purpose, two of whom are to be nominated by each State Party from amongst those having the academic and moral qualifications to assume high-ranking legal positions. The Council shall appoint the chairman of the Court from amongst the members of the Court.”).
279 See ICJ Statute, Art. 4(1). The membership of national groups is published in the annual reports of the PCA. See Permanent Court of Arbitration, Annual Report 2016, Annex 1 pp. 79-81 available at https://pca-cpa.org/wp-content/uploads/sites/175/2017/
03/ONLINE-PCA-Annual-Report-2016-28.02.2017.pdf.
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remove” from governments with a view to enhancing the professional caliber and independence of the judges of the Court.
280123. The nomination process under both of these models has been subject to considerable discussions. Criticism has in particular focused on the un-evenness and lack of uniformity of the processes at the national levels; the lack of transparency as to how candidates are identified and put forward; and the politicization of the nominations.
281With particular regard to the procedures within the PCA national groups tasked with nominating candidates for ICJ judges, it has been highlighted that procedures vary considerably across national groups (from formalized to ad hoc) and that each State follows its own preferences.
282In addition, there is no requirement that national groups be independent from their governments. According to some, the national groups are in fact “extensions of their governments” and generally “follow the directions of their political masters”.
283Nevertheless, some States, such as the U.K., Germany, France, and the U.S., have implemented more formalized, open, and transparent procedures for the nomination of candidates.
284In particular, some of these States have issued open calls for candidacies for the selection of their nominees to international courts and tribunals.
285Within the ECtHR system, the PACE, who elects judges to the ECtHR, has imposed a requirement that States “issue public and open calls for candidatures” when selecting and nominating candidates,
286and the Committee of Ministers has enacted specific guidelines in this respect.
287280 Abi-Saab (1997), pp. 175-176, 180-181; Lori F. Damrosch (1997), Commentary, in Connie Peck, Roy S. Lee (eds.), Increasing the Effectiveness of the International Court of Justice, Martinus Nijhoff, pp. 188-200; Lori F. Damrosch (2000), The Election of Thomas Buergenthal to the International Court of Justice, American Journal of International Law, Vol. 94, pp. 579-582, at 579.
281 See esp. Mackenzie, Malleson, Martin, Sands (2010), pp. 63-99, and the literature cited above in fn. 245.
282 See Mackenzie, Malleson, Martin, Sands (2010), pp. 84-95.
283 Robinson (2003), p. 279.
284 See e.g. in respect of the U.K. practice, Michael Wood (2007), The Selection of Candidates for International Judicial Office: Recent Practice, in Tafsir M. Ndiaye, Rüdiger Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, Brill Nijhoff, pp. 357-368, esp. 366-368; IDI Report, para. 24, in respect of the U.K., Germany, and France.
285 See, e.g., for the UK, Michael Wood (2007), pp. 366-368; and, in respect of the U.K., Germany, and France, IDI Report, para. 24.
286 PACE (2009), para. 4.1 (“states should, when selecting and subsequently nominating candidates to the Court, […] issue public and open calls for candidatures”).
287 See Council of Europe (2012a) (requiring, among other things that “[t]he call for applications should be made widely available to the public, in such a manner that it could reasonably be expected to come to the attention of all or most of the potentially suitable candidates”, that “States should, if necessary, consider taking additional appropriate measures in order to ensure that a sufficient number of good applicants present
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Under the ICC framework, States are also expected to issue a statement on how the selected nominees meet the required criteria for office.
288These procedures seek to make nominations by States or national groups less secretive and open to a wider pool of candidates.
124. Going one step further, a third, more radical possibility would be to allow any interested individual with the necessary qualification requirements to put forward his or her own candidature. The nominating phase in the hands of treaty parties or other entities would thus be eliminated. Under this option, a self-candidature by the interested individual, to follow an open call for self-candidatures, would be sufficient for the individual to become a “nominee” or “candidate” and proceed to the next step, i.e. screening (see infra section III.C.4) or appointment/election (infra section III.C.5). One example can be seen at the Caribbean Court. When the first batch of judges was elected, the Regional Judicial and Legal Services Commission (“RJLSC”), tasked with appointing the judges, proceeded to examine the candidatures received directly through an open call for candidates.
289At the European Union Civil Service Tribunal (which has now ceased to exist), a screening committee used to review the candidatures received through an open call, and the Council of the European Union appointed the judges by picking from the candidates that had passed the screening of the advisory panel.
290A screening and filtering phase by a body different from the one making the final appointment would seem indispensable if the selection process is to allow self-candidatures.
themselves to allow the selection body to propose a satisfactory list of candidates”, and that “[a] reasonable period of time should be given for the submission of applications”.
288 See ICC (2004), para. 6; Rome Statute, Art. 36(4)(a), in fine (“Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements” of the Rome Statute).
289 Kate Malleson (2009), Promoting Judicial Independence in the International Courts:
Lessons from the Caribbean, International and Comparative Law Quarterly, Vol. 58, pp.
671-687, 681 (noting that “[i]n the application round used to appoint the first cohort of judges, the RJLSC sent out an open call for candidates with advertisements for the posts being placed throughout the region and internationally. Approximately 90 applications were received and a shortlist of 30 was drawn up from which 12 were interviewed and seven were chosen”).
290 Council of the European Union (2004), Decision establishing the European Union Civil Service Tribunal, 2 November 2004, 2004/752/EC Euratom, Annex 1, Art. 3(3), subsequently re-enacted as TFEU as amended by the Lisbon Treaty (2007), 30 March 2010, OJ 2010/C 83/01, Protocol No. 3, Annex 1; See also Georges Vandersanden (2015), The Real Test – How to Contribute to a Better Justice, The Experience of the Civil Service Tribunal, in Michal Bobek (ed.), Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to the European Court, Oxford University Press, pp. 87-96;
Hazel Cameron (2006), Establishment of the European Union Civil Service Tribunal, The Law and Practice of International Courts and Tribunals, Vol. 5, pp. 273-284.