B. Who or three key requirements: Competence, diversity and independence
2. Competence
35. The constitutive instruments of existing international courts and tribunals require each adjudicator to possess a variety of individual qualities. In this context, individual selection criteria such as nationality of a contracting State,
59linguistic competence,
60and personal integrity/reputation
61do not pose particular
55 ICSID Convention, Art. 14(1) (“Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment”).
56 TFEU, Art. 253 (“The Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognized competence”).
57 See e.g. Rome Statute, Art. 41(2)(a); ICTY Statute, Art. 13.
58 See infra section III.B.4.a.
59 Statutes of certain courts and tribunal require their members to be nationals of a contracting party. See e.g. the Court of Justice of the Cartagena Agreement, established under the Treaty Creating the Court of Justice of the Cartagena Agreement, which “shall be composed of five justices who shall be nationals of the member countries […]” (Treaty Creating the Court of Justice of the Cartagena Agreement, 28 May 1979, 18 I.L.M. 1023 (1979), Art. 7). ACHR, Art. 52(1) (“The Court shall consist of seven judges, nationals of the member states of the Organization […]”); CETA, Art. 8.27.2 (“Five of the Members of the Tribunal shall be nationals of a Member State of the European Union, five shall be nationals of Canada […]”).
60 For instance, ICC judges shall have an excellent knowledge of and be fluent in at least one of the working languages of the court, i.e. French or English. Rome Statute, Art.
24
problems in practice. The most important individual selection criterion which deserves close examination for a prospective ITI concerns professional experience and expertise.
36. A number of statutes of international courts and tribunals follow the model of Article 2 of the ICJ Statute quoted above,
62which essentially envisages two alternative professional profiles for the Court’s judges reflecting “the distinction between the theory and practice of law”.
63In the first alternative, ICJ judges may be chosen from individuals eligible to the highest courts in their respective countries. As Abi-Saab notes, the ICJ Statute looks here at a “practitioner with long experience in municipal law, to the point of being eligible to the highest judicial office”, who needs to have “familiarity with judicial techniques rather than with the substance of applicable law”.
64Expressing similar requirements, other courts and tribunals call for their judges to be elected from amongst individuals eligible for appointment to a “high”
65or “the highest”
66judicial offices in their respective countries.
6736(3)(c). Even where it is not expressly set out in the constitutive instrument, linguistic competence requirements may be inferred from provisions on the working languages of the court. See e.g. ICJ Statute, Art. 39; ITLOS Rules of the Tribunal, 28 October 1997, Art. 43.
61 See ICJ Statute, Art. 2 (“persons of high moral character”); ECHR, Art. 21(1) (“judges shall be of high moral character”); ITLOS Statute, Art. 2(1) (“persons enjoying the highest reputation for fairness and integrity”); ACHR, Art. 52(1) and IACtHR Statute, Art. 4(1) (“jurists of the highest moral authority”); African Charter on Human and Peoples' Rights, Art. 31(1) (“personalities of the highest reputation, known for their high morality, integrity, impartiality”); ICTY Statute, Art. 13 (“persons of high moral character, impartiality and integrity”); Rome Statute, Art. 36(3)(a) (“persons of high moral character, impartiality and integrity”); ICSID Convention, Art. 14(1) (“persons of high moral character”).
62 See supra para. 29.
63 Georges Abi-Saab (1997), Ensuring the best bench: ways of selecting judges, in Connie Peck, Roy S. Lee (eds.), Increasing the Effectiveness of the International Court of Justice, Martinus Nijhoff, pp. 166-188, 167.
64 Abi-Saab (1997), p. 167.
65 ECHR, 21(1) (Judges of the ECtHR must “possess the qualifications required for appointment to high judicial office”). Compare this to the requirements for judges and advocates-general of the CJEU (“The Judges and Advocates-General of the Court of Justice shall be chosen from persons […] who possess the qualifications required for appointment to the highest judicial offices in their respective countries […]”, emphasis added) with those of the members of the General Court (“The members of the General Court shall be chosen from persons […] who possess the ability required for appointment to high judicial office”, emphasis added).
66 See e.g. ICJ Statute, Art. 2 (“The judges shall be chosen from among persons […]
who possess the qualifications required in their respective States for appointment to the highest judicial offices”); ICTY Statute, Art. 13 (“judges shall be persons […] who possess the qualifications required in their respective countries for appointment to the highest judicial offices”); Rome Statute, Art. 36(3)(a) (“The judges shall be chosen from among persons […] who possess the qualifications required in their respective States for appointment to the highest judicial offices”); ACHR, Art. 52(1) and IACtHR Statute, Art.
25
37. As second alternative of eligible judges, the statutes of the ICJ and other international judicial bodies mention “jurisconsults”, which in essence refers to scholars and academics. In some cases, statutes simply require individuals to be jurists of “recognized competence” without indication of a specific legal area.
68So for instance at the ICJ, judges need to be of recognized competence in
“international law”.
69For judges appointed on specialized courts, however, the subject-matter jurisdiction may call for more specific qualifications.
70Judges at the Inter-American Court of Human Rights (“IACtHR”), for example, must be experts “in the field of human rights”,
71while ITLOS judges must have expertise in the law of the sea.
72Members of the tribunals under CETA and the EU-Vietnam FTA, for their part, “shall have demonstrated expertise in public international law”, whereby “[i]t is desirable that they have expertise in particular, in international investment law, in international trade law and the resolution of disputes arising under international investment or international trade agreements”.
7338. The ICSID Convention, in the context of the individual requirements for designation to the ICSID Panels of Arbitrators and Conciliators by the Contracting States and the Chairman of the Administrative Council,
74requires that “[p]ersons
4(1) (“seven judges […] who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or of the state that proposes them as candidates”).67 The CETA and the EU-Vietnam FTA provide that tribunal members shall “possess the qualifications required in their respective countries for appointment to judicial office”.
See CETA, Art. 8.27.4; EU-Vietnam FTA, Art. 12(4).
68 CJEU, TFEU, Art. 253 (“jurisconsults of recognised competence”); ECtHR Statute, Art. 21(1) (“jurisconsults of recognized competence”).
69 ICJ Statute, Art. 2.
70 See e.g. requirements for WTO AB members under the DSU (“demonstrated expertise in law, international trade and the subject matter of the covered agreements generally”); see the detailed requirements for the ICC, supra fn. 51.
71 ACHR, Art. 52(1) and IACtHR Statute, Art. 4(1) (“jurists […] of recognized competence in the field of human rights”).
72 ITLOS Statute, Art. 2(1) (“members […] of recognized competence in the field of the law of the sea”).
73 CETA, Art. 8.27.4 (“Members of the Tribunal […] shall have demonstrated expertise in public international law. It is desirable that they have expertise in particular, in international investment law, in international trade law and the resolution of disputes arising under international investment or international trade agreements”); EU-Vietnam FTA, Art. 12(4) (“Members of the Tribunal […] shall have demonstrated expertise in public international law. It is desirable that they have expertise in particular, in international investment law, international trade law and the resolution of disputes arising under international investment or international trade agreements”).
74 ICSID disputing parties (but not the Chairman) may appoint arbitrators from outside the Panels to arbitral tribunals. However, ICSID arbitrators appointed by the disputing parties from outside the Panels must also possess the qualities stated in Art. 14(1) of the ICSID Convention. See ICSID Convention, Arts. 40(1) and 40(2).