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Neil Falzon Matthias Goldmann Ketevan Khutsishvili (eds.) Legal Research Group Nomination and Election of Judges to International Courts A Comparative Study April 2002 ELSA International 239, Boulevard Général Jacques B-1050 Brussels Belgium Tel: + 32 2 646 26 26 Fax: + 32 2 646 29 23 Email: [email protected]

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Page 1: Nomination and Election of Judges to International …iccnow.org/documents/ELSANominationElection.pdfELSA International 239, Boulevard Général Jacques B-1050 Brussels Belgium Tel:

Neil Falzon Matthias Goldmann Ketevan Khutsishvili (eds.)

Legal Research Group

Nomination and Election of Judges to International Courts

A Comparative Study

April 2002 ELSA International

239, Boulevard Général Jacques � B-1050 � Brussels � Belgium Tel: + 32 2 646 26 26 � Fax: + 32 2 646 29 23 � Email: [email protected]

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

Foreword

I

Foreword

On behalf of the European Law Students’ Association, I have the pleasure to submit this study to all who work on the establishment of the International Criminal Court (ICC) or who are interested therein. May it be considered as a contribution, though a small one, from our side to the work of the Preparatory Commission for the International Criminal Court.

The European Law Students’ Association (ELSA) is a Europe-wide, independent and non-political organisation. Currently it has about 18,000 members in forty-one countries. Being strongly committed to the promotion of Human Rights, ELSA has been involved in the establishment of an ICC since the Rome Conference in 1998. ELSA delegations have attended the sessions of the PrepCom, and several seminars and conferences were organised on this issue. A handbook on the ICC is also available.

The study was written by a group of law students and young lawyers from all over Europe. It was accomplished in very little time. In fact, there were less than three months between the first exchange of ideas and the finalising of the text. I do not write this without some pride, as it gives a good example of what the international network of ELSA is able to achieve.

This study could not have been done without the support of many people. In the first place, I wish to thank my co-editors, Neil Falzon from Malta and Kate Khutsishvili (ELSA Georgia), without the help of whom I would have been forlorn. Neil also spared no efforts and checked all texts for grammar and language. Special thanks to the authors, who gathered all the information in very little time. You were a great team! The study also owes a lot to Caroline Baudot from the Coalition for an International Criminal Court (CICC), New York, who read my initial drafts and gave us her inestimable advice. Thanks further to Mr. Schwietzke and Mrs. Bangert from the library of the Max-Planck-Institute for International Public Law in Heidelberg/ Germany for their kind help. And last but not least, thanks to Hans-Michael Deml, ELSA Coordinator for ICC related research and to all of the ELSA-ICC-crew for all the support we received.

Würzburg/Germany, 1 April 2002

Matthias Goldmann

Your comments and suggestions are very welcome. Please address them to: Matthias Goldmann Jägerstraße 2 97082 Würzburg Germany [email protected]

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

Table of Contents

II

Table of contents

FOREWORD............................................................................................................................................. I

TABLE OF CONTENTS .......................................................................................................................... II

NOTES ON THE AUTHORS .................................................................................................................. V

TABLE OF ABBREVIATIONS ..............................................................................................................VI

I. INTRODUCTION .................................................................................................................................. 1

II. JURISDICTION OF THE COURTS CONSIDERED IN THE STUDY ............................................. 2 1.) Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia ............................... 2 2.) Jurisdiction of the International Criminal Tribunal for Rwanda ....................................................... 2 3.) Jurisdiction of the International Court of Justice................................................................................ 2 4.) Jurisdiction of the International Tribunal for the Law of the Sea ...................................................... 3 5.) Jurisdiction of the European Court of Human Rights.........................................................................4 6.) Jurisdiction of the Inter-American Court of Human Rights ............................................................... 4 7.) Jurisdiction of the European Court of Justice ..................................................................................... 6 8.) Jurisdiction of the WTO Dispute Settlement Appellate Body............................................................. 6

III. REQUIREMENTS FOR JUDGES ..................................................................................................... 7 1.) International Criminal Tribunal for the Former Yugoslavia.............................................................. 7 2.) International Criminal Tribunal for Rwanda...................................................................................... 7 3.) International Court of Justice .............................................................................................................. 7 4.) International Tribunal for the Law of the Sea..................................................................................... 8 5.) European Court of Human rights ........................................................................................................ 8 6.) Inter-American Court of Human Rights.............................................................................................. 9 7.) European Court of Justice.................................................................................................................... 9 8.) The WTO Dispute Settlement Appellate Body.................................................................................... 9

IV. NOMINATION PROCEDURES ...................................................................................................... 10 1.) International Criminal Tribunal for the Former Yugoslavia............................................................ 10

a) Nomination procedure in general........................................................................................................ 10 b) Time allowed for nomination ............................................................................................................. 10 c) Transparency of the Nomination ........................................................................................................ 11

2.) International Criminal Tribunal for Rwanda.................................................................................... 11 a) Nomination in general........................................................................................................................ 11 b) Time allowed for nomination ............................................................................................................. 11 c) Transparency of the Nomination ........................................................................................................ 11

3.) International Court of Justice ............................................................................................................ 12 a) Nomination in general........................................................................................................................ 12 b) Time allowed for nomination ............................................................................................................. 12

4.) International Tribunal for the Law of the Sea................................................................................... 12 a) Nomination in General....................................................................................................................... 12 b) Time allowed for Nomination ............................................................................................................ 13 c) Transparency of the Nomination ........................................................................................................ 13

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

Table of Contents

III

5.) European Court of Human Rights ..................................................................................................... 13 a) Nomination procedure in general........................................................................................................ 13 b) Time allowed for Nomination ............................................................................................................ 14 c) Transparency of the nomination ......................................................................................................... 14

6.) Inter-American Court of Human Rights............................................................................................ 14 a) Nomination procedure in general........................................................................................................ 14 b) Time allowed for nomination ............................................................................................................. 15 c) Transparency ..................................................................................................................................... 15

7.) European Court of Justice.................................................................................................................. 15 a) Nomination in general........................................................................................................................ 15 b) Time Allowed for Nomination ........................................................................................................... 15 c) Transparency of the Nomination ........................................................................................................ 16

8.) WTO Dispute Settlement Appellate Body.......................................................................................... 16 a) Nomination in general........................................................................................................................ 16 b) Time allowed for nomination ............................................................................................................. 16 c) Transparency of the nomination ......................................................................................................... 16

V. ELECTION PROCEDURES.............................................................................................................. 17 1.) International Criminal Tribunal for the Former Yugoslavia............................................................ 17

a) From nomination to election............................................................................................................... 17 b) Election procedure............................................................................................................................. 17 c) Current Composition of the Tribunal .................................................................................................. 17 d) Term of office ................................................................................................................................... 18

2.) International Criminal Tribunal for Rwanda.................................................................................... 18 a) From Nomination to Election ............................................................................................................. 18 b) Election Procedure............................................................................................................................. 19 c) Current Composition of the Tribunal .................................................................................................. 19 d) Term of office ................................................................................................................................... 19

3.) International Court of Justice ............................................................................................................ 19 a) From nomination to election............................................................................................................... 19 b) Election procedure............................................................................................................................. 19 c) Current Composition of the Court ...................................................................................................... 20 d) Term of office ................................................................................................................................... 20

4.) International Tribunal for the Law of the Sea................................................................................... 20 a) From nomination to election............................................................................................................... 20 b) Election Procedure............................................................................................................................. 21 c) Current Composition of the Tribunal .................................................................................................. 22 d) Term of Office................................................................................................................................... 22

5.) European Court of Human Rights ..................................................................................................... 23 a) From nomination to election............................................................................................................... 23 b) Election procedure............................................................................................................................. 23 c) Current Composition of the Court ...................................................................................................... 24 d) Term of office ................................................................................................................................... 24

6.) Inter-American Court of Human Rights............................................................................................ 24 a) From nomination to election............................................................................................................... 24 b) Election procedure............................................................................................................................. 24 c) Current composition of the Court ....................................................................................................... 25 d) Term of office ................................................................................................................................... 25

7.) European Court of Justice.................................................................................................................. 25 a) From Nomination to Election ............................................................................................................. 25 b) Election procedure............................................................................................................................. 25 c) Current Composition of the Court ...................................................................................................... 26 d) Terms of Office ................................................................................................................................. 26

8.) WTO Dispute Settlement Appellate Body.......................................................................................... 26 a) From nomination to election............................................................................................................... 26 b) Election procedure............................................................................................................................. 26 c) Current Composition of the Appelate Body ........................................................................................ 26 d) Term of office ................................................................................................................................... 26

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

Table of Contents

IV

VI. INCREASE IN THE NUMBER OF JUDGES .................................................................................. 27 1.) International Criminal Tribunal for the Former Yugoslavia............................................................ 27 2.) International Criminal Tribunal for Rwanda.................................................................................... 27 3.) International Court of Justice ............................................................................................................ 27 4.) International Tribunal for the Law of the Sea................................................................................... 28 5.) European Court of Human Rights ..................................................................................................... 28 6.) Inter-American Court of Human Rights............................................................................................ 28 7.) European Court of Justice.................................................................................................................. 29 8.) WTO Dispute Settlement Appellate Body.......................................................................................... 29

VII. VACANCIES ................................................................................................................................... 30 1.) International Criminal Tribunal for the Former Yugoslavia............................................................ 30 2.) International Criminal Tribunal for Rwanda.................................................................................... 30 3.) International Court of Justice ............................................................................................................ 31 4.) International Tribunal for the Law of the Sea................................................................................... 31 5.) European Court of Human Rights ..................................................................................................... 31 6.) Inter-American Court of Human Rights............................................................................................ 32 7.) European Court of Justice.................................................................................................................. 32 8.) WTO Dispute Settlement Appellate Body.......................................................................................... 32

VIII. CONCLUSIVE REMARKS ........................................................................................................... 33

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

The Authors

V

Notes on the Authors Dr. Neil Falzon: graduated from the University of Malta with the final thesis on the impact of the ICC on Maltese Law. Co-ordinator of the KSU-ICC Committee (University Student Council) aiding the Maltese Government in the ratification of the Satute. Pursuing Magister Juris in International Law, fosucing studies on International Organisations. Held posts in ELSA Malta, ELSA International, now an advisor to ELSA Malta. [EDITING ] Roberta Ferrario: Law student at the University of Pavia, Italy. Member of ELSA Milan. Publication: “Interpretation and Application of CISG in Italian Courts” in: ELSA Italy/ELSA Germany: “Application of the Vienna Sales Convention (CISG) in legal relations between Italy and Germany”, to appear in 2002. [I NTER-AMERICAN COURT OF HUMAN RIGHTS] Matthias Goldmann: Law student at the University of Würzburg, Germany. Complimentary studies in European Law. 2000/2001: Studies in International Law at the University of Fribourg, Switzerland. Director for Human Rights of ELSA Würzburg. Member of the ELSA Delegation to the 8th session of the ICC-PrepCom. [ICTY, I NTRODUCTION , CONCLUSION, EDITING ] Jakub Jaraczewski: Law student at Adam Mickiewicz University in Poznan, Poland. Attended Courses on Diplomatic Law, Treaty Law and International Courts. Responsible for Academic Activities of ELSA Poznan; co-ordinator of the ELSA Law Web in Poland. [EUROPEAN COURT OF JUSTICE] Ketevan Khutsishvili: Student in International Law and International Relations at Tbilisi State University, Georgia. Currently preparing a thesis on the ICC. Several publications. CIS Conference Working Group & CAUCASUS-FRESTA Programme Coordinator of the Georgian Young Lawyers’ Association. Member of ELSA-Georgia. Member of the ELSA Delegation to the 8th session of the ICC-PrepCom. [ICTR, EDITING ] Stephan Lenzhofer: Law student at the University of Vienna, Austria. 2000/2001: Student at the Faculty of Law of the University of Fribourg, Switzerland. Member of ELSA Vienna. [EUROPEAN COURT OF HUMAN RIGHTS] Agata Pijanowska: Law student at Adam Mickiewicz University in Poznan, Poland. Attended Courses on Treaty Law and the Law of the Sea. Responsible for Seminars and Conferences of ELSA Poznan. [EUROPEAN COURT OF JUSTICE] Paola Sacchi: Law student at the Università Statale di Milano, Italy. Currently preparing a thesis on trigger mechanisms of the International Criminal Court. Director of Human Rights, ELSA Milan. Member of the ELSA Delegation to the 8th session of the ICC-PrepCom. [I NT. TRIBUNAL FOR THE LAW OF THE SEA] Leonel Santos: Law student at the University of Coimbra, Portugal. 2001/2002: post-graduate studies on Human Rights and Democratisation at the University of Louvain, Belgium. Summer Course on human rights in 2000. Member of ELSA Coimbra. Organisation Committee of a Conference on the ICC in the Portuguese Parliament. Member of the ELSA Delegation to the 8th session of the ICC-PrepCom. [I NTERNATIONAL COURT OF JUSTICE] Meinhard Schröder: Law student at the University of Munich, Germany. Member of ELSA Munich. Participated in the seminar on "Rules of Procedure & Evidence of the ICC" in Munich in April 2000. Member of the ELSA Delegation to the 8th session of the ICC-PrepCom. [WTO DISPUTE SETTLEMENT APPELLATE BODY]

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

Abbreviations

VI

Table of Abbreviations art. article

cf. compare

Doc. Document

DSB WTO Dispute Settlement Body

DSU Understanding on rules and procedures governing the settlement of disputes (Annex 2 of the WTO Agreement)

ECHR European Court of Human Rights

ECJ European Court of Justice

ed. (eds) editor/edition (editors)

ETS European Treaty Series

IACHR Inter-American Court of Human Rights

ICC International Criminal Court

ICJ International Court of Justice

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

ILM International Legal Materials

ITLOS International Tribunal for the Law of the Sea

NGO Non-governmental Organisation

OAS Organisation of American States

p. (pp.) page (pages)

para. paragraph

PrepCom Preparatory Commission for the International Criminal Court

Res. Resolution

UN United Nations

UN-Charter Charter of the United Nations

UNTS United Nations Treaty Series

vol. volume

WTO World Trade Organisation

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

I. Introduction

1

I. Introduction

The purpose of this study is to provide some ideas for the drafting of rules governing the election of judges to the ICC, an issue to be tackled by the Preparatory Commission for the International Criminal Court at its ninth session.1 Therefore, we want to give a comparative survey on how other international courts deal with some of the questions arising in this context.

The authors of the study wrote about one international court each. Nevertheless, the study is structured in a topical order, rather than in an institutional one. We opted for this presentation because our approach is genuinely a comparative one. Moreover, the reader should find all the information concerning a certain issue under the same heading. However, as the study consists of the compiled research of different people, some inconsistencies might have occurred. They are also due to the fact that the authors were free to emphasise aspects of their choice.

In the following chapter, a short summary will be given of the jurisdiction of each court considered in the study. The third chapter deals with requirements for candidates. Chapters four and five, the core of the study, are about nomination and election procedures. They focus on timing of nominations and elections, transparency, subsidiary bodies involved in the procedure and mechanisms to ensure equal geographic and gender representation. Subsequent chapters are about procedures provided for vacancies or for an increase in the number of judges.

It is our intention to not only explain how the different procedures should function according to statutory prescriptions, but also to highlight how they actually work. Therefore, after outlining the statutory frame of a certain procedure, some information will usually be provided on practical experiences with the procedure in question.

While this study is on international selection procedures, a recent study on national selection procedures, to which is referred in art. 36 para. 4 (a) (i) of the Rome Statute, is also available from ELSA.2

Please note that opinions expressed in the study give the personal point of view of the author concerned and do by no means engage the responsibility of the European Law Students’ Association.

1 Cf. “Road map” leading to the early establishment of the International Criminal Court, UN Doc. PCNICC/2001/L.2 and Corr.1. 2 ten Brinke/Deml, Selection of Judges, 2001. For copies please contact ELSA International or Hans-Michael Deml ([email protected]).

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

II. Jurisdiction of the Courts

2

II. Jurisdiction of the Courts Considered in the Study

1.) Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established and its Statute adopted by Resolution 827 of the UN Security Council.3 This resolution was passed on 25 May 1993 in the face of the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and as a response to the threat to international peace and security posed by those serious violations. The ICTY has jurisdiction over (1.) Grave breaches of the 1949 Geneva Conventions, (2.) Violations of the laws or customs of war, (3.) Genocide and (4.) Crimes against humanity (art. 2 to 5 of the ICTY Statute).4 It can convict natural persons who committed such crimes on the territory of the former Yugoslavia since 1991 (art. 1 and 8 ICTY Statute). It has primacy over national courts (art. 9 para. 2). Its seat is in The Hague, The Netherlands.

2.) Jurisdiction of the International Criminal Tribunal for Rwanda

The International Tribunal for Rwanda (ICTR) was established by the UN Security Council in 19945. It was created in order to punish natural persons who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime of genocide, crimes against humanity and violated Article 3 common to the Geneva Conventions and of Additional Protocol II. These crimes need to have been committed either in Rwanda or by Rwandan citizens in the territory of neighboring States, between 1 January 1994 and 31 December 1994.6 Like the International Criminal Tribunal for the former Yugoslavia, it has primacy over national courts (art. 8 (2) of the ICTR Statute).

3.) Jurisdiction of the International Court of Justice

The International Court of Justice was established by the Charter of the United Nations as the principal judicial organ of the organization. Its tasks are (1) to rule, in accordance with international law, the disputes submitted to it by States, and (2) to give advisory opinions. The Court has started functioning in 1946, succeeding to the Permanent International Court of Justice. Its seat was established in The Hague.

All members of the United Nations are ipso facto parties to the Statute of the International Court of Justice (ICJ). A state which is not a member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council (art. 93 paras.1 and 2 of the UN Charter).7 The jurisdiction of the Court can also be accepted by States not parties to the Statute

3 UN Doc. S/RES/827 (1993). 4 Statute of the International Tribunal, adopted 25 May 1993 by Security Council Resolution 827, as amended 13 May 1998 by Security Council Resolution 1166 and 30 November 2000 by Security Council Resolution 1329, hereinafter referred to as “ICTY Statute”. 5 Resolution 955 of 8 November 1994, UN Doc. S/RES/955 (1994). 6 Art. 1 of the Statute of the International Tribunal for Rwanda, (hereinafter referred to as “ICTR Statute”), annex to Resolution 955 of 8 November 1994. 7 Charter of the United Nations, adopted on 26 June1945, hereinafter referred to as “UN Charter”.

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

II. Jurisdiction of the Courts

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of the Court (art. 26 (1)(c) of the Rules of the Court).8

The jurisdiction of the Court comprises all cases referred to it by the parties and all matters specially provided for in the Charter of the United Nations, in treaties and in conventions. The States Parties to the ICJ Statute may declare that they recognize the Jurisdiction of the Court as compulsory (art. 36 of the Statute of the ICJ).9

The International Court of Justice shall apply:

a) International Conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

b) International custom, as evidence of a general practice accepted as law;

c) The general principles of law recognized by civilized nations;

d) Subject to provisions of Article 5910, judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law (art.38 of the ICJ).

The Court has no competence for criminal jurisdiction. Only States may be parties in cases before the Court. The judgements of the Court are “final and without appeal” (art.60 of the Statute of the ICJ). The decisions of the Court have an effect only inter partes (art.59 of the Statute of the ICJ).

Furthermore, the General Assembly or the Security Council may request advisory opinions of the Court on any legal question. Other organs of the United Nations and its specialized agencies, which may be authorized by the General Assembly, may also request advisory opinions on legal questions arising within the scope of their activities (art.96 paras.1 and 2 of the UN Charter).

4.) Jurisdiction of the International Tribunal for the Law of the Sea 11

The International Tribunal for the Law of the Sea (hereinafter referred to as ITLOS or simply “the Tribunal”) is an independent judicial body established by the United Nations Convention on the Law of the Sea of 10 December 198212.

Pursuant to art.287 of the Convention Part XI, States have a choice, when signing, ratifying or acceding to the Convention, as to the means for the settlement of the disputes concerning the interpretation and application of the Convention and the Agreement adopted on 28 July 199413, relating to the implementation of Part XI of the Convention. Pursuant to art.288, even international agreements, related to the purposes of the Convention, may submit disputes concerning their application or interpretation to these means of resolutions.

8 Rules of the International Court of Justice, adopted 1978, as amended on 5 December 2000, hereinafter referred to as “ICJ Rules”. 9 Statute of the International Court of Justice, hereinafter referred to as “ICJ Statute”. 10 “The decision of the Court has no binding force except between the parties and in respect of that particular case”. 11 The author wishes to thank very much Prof. T. Treves for granting an interview which provided a lot of useful information on ITLOS. Besides being Professor at the University of Milan he is also a six year term Judge at the ITLOS and his collaboration to this work proved to be very interesting in terms of news unknown to the public since not written in any documents yet. Regrettably, it is not possible to publish this interview for reasons of space. However, the interview is available with the author. Please contact [email protected]. 12 Reproduced in International Legal Materials, vol. XXI (1982), pp. 1261-1355. 13 Available at http://www.un.org/Depts/los/convention_agreements/convention_overview_part_xi.htm as of 22/03/02

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

II. Jurisdiction of the Courts

4

ITLOS is one of these means, besides the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII and a special arbitral tribunal constituted in accordance with Annex VIII. The Tribunal is composed of 21 members, 11 of whom are judges of the Seabed Disputes Chamber, which is competent to give just advisory opinions on legal questions arising within the scope of the International Seabed Authority. The other Chambers, formed by the Tribunal, pursuant to the provisions of the Statute, are: the Chamber of Summary procedure, the Chamber for Fisheries Disputes and the Chamber for Marine Environment Disputes.

The jurisdiction of the Tribunal is mandatory in specific cases, i.e. for the prompt release of vessels under art.292 and for provisional measures pending the constitution of an arbitral tribunal under article 290 of the Convention.

The Tribunal is open to States Parties to the Convention and, in certain cases, to entities other than States, such as international organisations and natural or legal persons.

5.) Jurisdiction of the European Court of Human Rights

The European Court of Human Rights (hereinafter referred to as “ECHR”) is part of the Council of Europe, an international organisation with, at present, 43 European member states. The ECHR is competent for complaints of alleged violations of the European Convention On Human Rights14 (hereinafter referred to as the “Convention”) by any authority of any member state. Complaints may be referred to the ECHR both by a member state and individuals, non-governmental organisations or groups of individuals. The ECHR may only accept complaints after all domestic remedies have been exhausted. The ECHR delivers judgements that are binding on the member states. It can also grant damages to the victims of Human Rights’ violations.

6.) Jurisdiction of the Inter-American Court of Human Rights

The Inter-American Court of Human Rights (hereinafter referred to as “IACHR” or “the Court”) is an autonomous juridical institution of the Organization of the American States (hereinafter referred to as “OAS”),15 brought into being by the entry into force of the American Convention on Human Rights16 (hereinafter referred to as “the Convention”), on July 18, 1978. The Court was established in 197917 and has its headquarters in San José, Costa Rica. Its purpose is to

14 Convention on the Protection of Human Rights and Fundamental Liberties from 11/04/1950, ETS No. 5. 15 The OAS was created on April 30, 1948, in the Ninth International Conference of American States (Bogotà, Colombia), during which 21 American States signed up the Charter of the Organization of the American States, UNTS vol. 119 p. 3, entered into force December 13, 1951. At present, all of the 35 American States signed the OAS Charter. OAS is based in Washington D.C. (U.S.A.). The OAS Charter has been amended by Protocol of Buenos Aires, 721 UNTS 324, O.A.S. Treaty Series No. 1-A, entered into force Feb. 27, 1970; amended by Protocol of Cartagena, O.A.S. Treaty Series No. 66 ILM 527, entered into force Nov. 16, 1988; amended by Protocol of Washington, 1-E Rev. OEA Documentos Oficiales OEA/Ser.A/2 Add. 2 (SEPF), 33 ILM 1005, entered into force Sept. 25, 1997; amended by Protocol of Managua, 1-F Rev. OEA Documentos Oficiales OEA/Ser.A/2 Add. 4 (SEPF), 33 ILM 1009, entered into force Jan. 29, 1996. 16 The American Convention on Human Rights [O.A.S. Treaty Series No. 36, UNTS vol. 1144 p123-212, 9 ILM 673 (1970)] was approved on November 22, 1969, during an Inter-American Specialized Conference on Human Rights (San José, Costa Rica, November 7-22, 1969). It entered into force July 18, 1978. 26 American States signed the Convention, but only 25 ratified or adhered to it. 17 At the seventh special session of the OAS General Assembly (May 1979), the States Parties to the Convention elected the first seven judges to sit on the Court. On September 3, 1979, the latter was officially installed in San José, Costa Rica.

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ELSA Legal Research Group Nomination and Election of Judges to International Courts

II. Jurisdiction of the Courts

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apply and interpret the Convention (Art. 1 Convention; Art. 1 Statute of the IACHR18, hereinafter referred to as "IACHR-Statute").

The Convention sets forth the legal basis for the creation of the IACHR and its jurisdiction19.

The Convention confers contentious and advisory functions on the Court. The Court exercises its jurisdiction and functions in accordance with the provisions of the Convention and of its Statute.

The adjudicative jurisdiction is governed by the provisions of Articles 61, 62 and 63 of the Convention. It involves the power to adjudicate disputes relating to charges for violation of the Convention by a State Party. Only the States Parties to the Convention, which have recognized its jurisdiction20, and the Commission have the right to submit cases to the IACHR (Art. 61 Convention). Any individual or group of persons, or any NGO legally recognized in one or more Member States of the OAS can only lodge petitions with the Commission on behalf of the victim (Articles 44 and 46 of the Convention). The Commission is also entitled to examine Inter-State complaints21 (Art. 45, par. 1 Convention).

The Commission can follow its examination of a complaint either with the publication of a final report or with the submission of the case to the IACHR, only after completion of the procedures brought before it and only if the State involved has recognized its jurisdiction22.

As to its advisory jurisdiction, any Member State of the OAS or authorized organ of OAS23 may seek an opinion on the Convention or other human rights treaty to which an OAS Member is party (Art. 64 Convention).

Judgements and decisions of the IACHR are final and not subject to appeal (Art. 67 Convention; Art. 29 Rules of Procedure of the IACHR, as amended24).

18 See Art. 60 of the Convention. Statute of the Inter-American Court of Human Rights, O.A.S. Res. 448 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80 at 98, Annual Report of the Inter American Court of Human Rights, OEA/Ser.L/V.III.3 doc.13 corr. 1 at 16 (1980). Approved by the OAS General Assembly on October 31, 1979. Statute of the Inter-American Court of HR of 31 October 1979: Texts available in T.Buergenthal/D. Shelton, Protecting Human Rights in the Americas, 1995, p. 667. 19 See the American Convention on Human Rights, Part II, Chapter VII. 20 The IACHR jurisdiction is recognized only by 22 out of 25 States Parties, which ratified or adhered to the Convention. 21 Inter-State complaints can only be filed by and against those States Parties that expressly recognize the jurisdiction of the Commission and of the Court to that effect. Only nine (9) States Parties have made the corresponding declaration, but none of them has made use of the procedure so far. 22 A State Party to the Convention may accept the Court's jurisdiction in general or only for a particular case. 23 See Chapter X of the OAS Charter. 24 See Art. 60 Convention and Art. 25 IACHR-Statute. At its third session, July 30 to August 9, 1980, the Court adopted its Rules of Procedure and finalized the work on the Headquarters Agreement concluded with Costa Rica, setting forth the privileges and immunities of the Court, its judges and its staff, and those persons who appears before it. The Government of Costa Rica ratified that agreement. (there should not be a paragraph break here)The Court approved its second set of Rules of Procedure in 1991, which took effect on August 1 of the same year. Five years later, on September 16, 1996, the Court adopted a third set of Rules, which took effect on January 1, 1997. Finally, on November 24, 2000, the Court introduced new Rules of Procedure, which took effect on June 1, 2001. Rules of Procedure of the IACHR of 18 January 1991: texts in T.Buergenthal/D. Shelton, Protecting Human Rights in the Americas, 1995, p. 672. Texts available also on the website http://www1.umn.edu/humanrts/iachr as to 25.03.2002 and on the website http://www.corteidh.or.cr as to 25.03.2002.

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7.) Jurisdiction of the European Court of Justice 25

The European Court of Justice (ECJ) is part of the European Union (EU). It is one of its main bodies. Its task is to interpret the treaties establishing the European Union and the European Community, as well as the community law derived from these treaties (art. 46 EU-Treaty; art. 220 and 234 of EC-Treaty26). Regarding claims for damages (art. 288 EC-Treaty) and Fundamental Rights in the European Community, the court is to further develop these fields of community law in accordance with acknowledged principles of community law.27 It can receive the following suits:

• Appeals against judgements of the European Tribunal of First Instance ;

• Infringement proceedings;

• Judicial Reviews;

• References from national courts;

• Claims for damages;

• Legal opinions;

• Suits requesting interim relief.

Judgements of the ECJ which refer to persons other than States are enforceable according to the law of procedure of the State in which the enforcement is carried out. The enforcement is appended by a designated national authority (articles 244 and 256 EC Treaty).

8.) Jurisdiction of the WTO Dispute Settlement Appellate Body

The WTO appellate body is part of the dispute settlement system of the WTO, which was established in 1995.

If member states of the WTO cannot settle a dispute about the violation of trade rules by way of consultations, a panel28 of 3 or 5 panelists is established by the DSB (Dispute Settlement Body, which is in fact the General Council meeting as DSB). The panel creates a final report29 stating its opinion. Parties have the chance to appeal against a panel’s report based on points of law.30 It is the WTO Appellate body that deals with these appeals.31 The appellate body either confirms or rejects the panel’s report. In any case, the report by either the panel or the appellate body will turn into a ruling if it is not rejected by the DSB in a consensus decision32 (including the winning party’s vote, which makes a consensus highly improbable).

The losing party is obliged to implement the ruling, in default of which the DSB can authorise retaliation pending full implementation.33

25 The authors wish to thank Prof. Dr. hab. Andrzej Redelbach (AMU, Poznan) who provided a lot of useful information. 26 For a consolidated version of the EU and EC Treaties after the Treaty of Amsterdam: see 37 ILM 56 (1998). 27 Cf. judgement in joint cases C-46/93 and C-48/93 of 5 March 1996, “Factortame III”, ECJ Official Records (1996) I-1029, para. 27. 28 Art. 6 of the Understanding on rules and procedures governing the settlement of disputes (Annex 2 of the WTO Agreement) - DSU. 29 art. 12.8 DSU 30 art. 16.4 DSU 31 art. 17 DSU 32 art. 16.4, art. 17.14 DSU 33 art. 22 DSU

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III. Requirements for Judges

1.) International Criminal Tribunal for the Former Yugoslavia The Statute of the International Criminal Tribunal for the Former Yugoslavia provides that

the Court consists of 16 permanent and 27 ad-litem judges. Art. 13 of the ICTY Statute specifies the qualifications required for candidates for both permanent and ad-litem judges. Candidates must be persons of high moral character, impartiality and integrity. They also have to be independent (art. 12 (1) of the ICTY Statute). In addition, they must possess the qualifications required in their respective countries for appointment to the highest judicial offices. The experience of the judges in criminal law, international law, including international humanitarian law and human rights law, must be taken into due account in the overall composition of the Chambers.

According to Article 12 (1) of the Statute of the International Criminal Tribunal for the Former Yugoslavia, no two permanent judges may be nationals of the same State. Similarly, no two ad-litem judges may be nationals of the same State. Permanent judges must not be nationals of the same State as a judge of the International Criminal Tribunal for Rwanda (ICTR) sitting in the Appeals Chamber of both ICTY and ICTR (art. 13 bis (1) (b) of the ICTY Statute).

2.) International Criminal Tribunal for Rwanda According to art. 12 (1) of the Statute of International Criminal Tribunal for Rwanda, the

16 Judges of the Tribunal have to be impartial persons of high moral character and , of integrity. Similar to the requirements for the ICTY, listed in the Statute of the International Criminal Tribunal for the Former Yugoslavia, judges are required to possess the qualifications required in their respective countries for appointment to the highest judicial offices. Due account shall be paid to the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.

No two Judges shall be of the same nationality and neither of them shall be of the same nationality as any judge who is a member of the Appeals Chamber and who was elected or appointed a permanent judge of the ICTY (art. 12 para. 2 (d) ICTR Statute). In case two candidates of the same nationality obtain the required majority vote, the one receiving the higher number of votes shall be elected (art. 12 para. 2 (d) ICTR Statute).

3.) International Court of Justice As the Statute of the International Court of Justice states, the court shall consist of a body

of fifteen independent judges, no two of whom may be nationals of the same State (art.3 of the Statute of the ICJ). For the purposes of a particular case, the Court may also include upon the Bench one or more persons chosen under Article 31 of the Statute of the ICJ to sit as judges ad hoc. These judges shall participate in the case in which they sit on terms of complete equality with the other judges on the Bench (art.1, para. 2 and art.8, para.2 of the Rules of the ICJ).

For the purposes of membership in the Court, the Statute emphasizes that if a person could be regarded as a national of more than one State, he/she shall be deemed to be a national of the country in which he/she ordinarily exercises civil and political rights (art.3, para.2 of the Statute of

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the ICJ).

Judges should be elected regardless of their nationality from among persons of high moral character, and like the ICTY and ICTR requirements, they should possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurisconsults of recognised competence in International Law (art.2 of the Statute of the ICJ).

4.) International Tribunal for the Law of the Sea As far as the requirements for the judges to the International Tribunal for the Law of the

Sea are concerned, the Statute provides that the 21 members34 must be elected form persons enjoying the highest reputation for fairness and integrity, as well as having recognized competence in the law of the sea. Art.2, para.2 of the statute states that the composition of the Tribunal has to be suchthat the representation of the principal legal systems of the world and an equitable geographical distribution are assured.

In order to implement the mentioned provisions, art.3 of the Statute gives a more detailed description of the way the Tribunal should guarantee this equitable representation. The first requirement, provided for in art.3, para.135, is that, like with ICTY, ICTR and ICJ, no two persons of the same nationality can be members of the Tribunal. In case a person can be regarded as a national of more than one State, the State in which he ordinarily exercises civil and political rights has to be considered his State of nationality.

5.) European Court of Human rights The European Court of Human Rights consists of a number of permanent judges equal to

that of the member states (art. 20 of the European Convention of Human Rights). According to the Convention (art. 21(1)), the judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. Since the ECHR has functions that resemble those of a ‘Constitutional Court’ the judges cannot fully limit themselves to deciding the case at hand; they must also have the capacity to evaluate long-term consequences of their judgements.

Nevertheless, there is no special mechanism to ensure the judges’ qualifications. During their term of office the judges must not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office (Art. 21 (3) of the Convention). There is no particular rule concerning the nationality of the judges. Paragraph 59 of the Explanatory Report to Protocol No. 11 to the Convention (on the establishment of the ECHR) states that there should not be more than two judges of the same nationality on the Court. The reason for this is to permit small states to nominate a judge from another European State. At the moment, only Liechtenstein made use of this option by sending a judge of Swiss nationality to the court.

34 Art. 1 of the Rules of Procedure states on the use of terms that: “…(e) “Member” means an elected judge; (f) “judge” means a Member as well as a judge ad hoc; (g) “judge ad hoc” means a person chosen under article 17 of the Statute for the purposes of a particular case…”. Rules of the Tribunal are available on the Tribunal web site, i.e. www.itols.org, under the voice Documents. 35 As observed in the commentary of the Statute by Myron H. Nordquist, this paragraph follows art.3 of the International Court of Justice.(remove this one too) Myron H. Nordquist, United Nations Convention on the Law of the Sea 1982 (1991), Martins Nijhoff Publishers, p.343.

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6.) Inter-American Court of Human Rights As the American Convention on Human Rights provides, the Inter-American Court of

Human Rights consists of seven permanent titular judges (art. 52 Convention; art. 4, para. 1 IACHR-Statute).

The qualifications required for candidates eligible as IACHR judges are set in art. 52 of the Convention, and in art. 4 para. 1 of the Statute of the IACHR. Candidates must be nationals of the Member States of the Organization of American States, but no two judges may be nationals of the same State (Art. 4, par. 2 IACHR-Statute; Art. 52, par. 2 Convention). They must be persons with the highest reputation of moral authority, impartiality and integrity. In addition, they must be persons of recognized competence in the field of human rights and must possess the qualifications for appointment to the highest judicial offices of the State that proposes them as candidates or required in the State they are nationals of. These provisions apply to ad interim as well as to ad hoc judges.

7.) European Court of Justice The European Court of Justice consists of fifteen Judges and eight Advocates General. For

each Member State of the European Union there is one judge sitting in the court. Judges are required to be "persons whose independence is beyond doubt and who possess the qualifications for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognised competence." They are appointed by the common accord of the governments of the Member States. The Council has the power, at the request of the ECJ, to increase the number of judges (art. 221 and 222 of EC Treaty). There are no special mechanisms for ensuring the judges’ qualifications. It’s a nation’s own responsibility to nominate a competent Judge.

The Judges may not hold any political or administrative office. They also may not engage in any occupation unless exemption is exceptionally granted by the Council. When taking up their duties, they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom, in particular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits (art. 223 of EC Treaty).

8.) The WTO Dispute Settlement Appellate Body The Appellate Body consists of seven judges (art. 17.1 of DSU), three of whom serve on a

case (“division”).They have to be persons of recognised authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally. They shall be unaffiliated with any government (art. 17.3 of DSU). Judges are supposed to be broadly representative of the WTO members (art.17.3 DSU).

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IV. Nomination Procedures

1.) International Criminal Tribunal for the Former Yugoslavia

a) NOMINATION PROCEDURE IN GENERAL

The nomination and election procedure for permanent judges is set out in art. 13 bis (1) of the ICTY Statute. At the beginning of a procedure, the Secretary-General of the United Nations invites nominations from Member States of the United Nations and from non-member States maintaining permanent observer missions at the United Nations Headquarters. Within sixty days, each State may nominate up to two candidates, no two of whom may be of the same nationality and neither of whom may be of the same nationality as a judge of the ICTR sitting in the Appeals Chamber. The Secretary-General then forwards the nominations to the Security Council, which in turn establishes a list of at least twenty-eight and no more than forty-two candidates, taking due account of the adequate representation of the principal legal systems of the world. This list is transmitted by the President of the Security Council to the President of the General Assembly.

The nomination of ad-litem judges is governed by art. 13 ter (1) of the ICTY Statute. On invitation of the Secretary-General, Member States of the United Nations and non-member States maintaining permanent observer missions at the United Nations Headquarters may nominate up to four candidates, taking into account fair representation of female and male candidates. The Secretary-General then forwards the nominations to the Security Council, which in turn establishes a list of at least fifty-four candidates, taking due account of the adequate representation of the principal legal systems of the world and bearing in mind the importance of equitable geographical distribution. This list is transmitted by the President of the Security Council to the President of the General Assembly.

b) TIME ALLOWED FOR NOMINATION

The time allowed for nominations is always sixty days, irrespective of the fact if it is an election for permanent or ad-litem judges (art. 13 bis (1) (b), 13 ter (1) (b) ICTY Statute). In practice, this delay has sometimes proved to be insufficient. For example, the procedure for the election on 14 March 2001 began in November 2000, when the Secretary-General invited States to submit nominations. By 11 January 2001, only twenty-four nominations had been received, three nominations short of the required twenty-eight.36 On 19 January 2001, the Security Council decided to extend the deadline for nominations until 31 January 2001.37 However, only one additional nomination was received.

The nomination procedure for ad-litem judges began on 30 November 2000, when the Security Council decided to establish a pool of ad-litem judges for the ICTY. On 15 February 2001 the Legal Counsel, acting on behalf of the Secretary-General, invited States to submit nominations until 15 April 2001. On 27 April 2001, the President of the Security Council forwarded a list of 64 nominees to the President of the General Assembly, ten more than the required minimum.38

36 Letter dated 11 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/61. 37 Security Council Extends Deadline for Nominations of International Tribunal Judges, 19 January 2001, UN Doc. SC/6993. 38 Letter dated 27 April 2001 from the President of the Security Council to the President of the General Assembly, UN Doc. A/55/917. Four nominations were considered receivable, although they had been submitted after expiration of the delay of 60 days.

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c) TRANSPARENCY OF THE NOMINATION

There is an established practice to circulate Curricula vitae of the candidates sufficiently in advance to the election. These CVs are of general distribution and therefore accessible to the public. Generally, they provide sufficient information on the candidates. For the election taking place on 14 March 2001, the CVs were published on 9 February 2001, more than one month before the election.39

However, the CVs submitted to the General Assembly sometimes lack uniformity in aspects not only related to length. Some of them merely consist of tabular lists with the most important dates from the professional life of the candidate, whereas others provide illustrative portraits. Likewise, some of them are structured in ascending, others in descending order.40

2.) International Criminal Tribunal for Rwanda

a) NOMINATION IN GENERAL

According to art. 12 para. 2 (a) of the ICTR Statute, the Secretary-General calls for nominations41. The UN Member States, as well as non-member States maintaining permanent observer missions at the UN Headquarters have the right to nominate candidates. Each State is entitled to nominate up to two candidates, no two of whom shall be of the same nationality and neither of the same nationality as any judge who is a member of the Appeals Chamber and who was elected or appointed as a permanent judge of the International Tribunal for Yugoslavia.

After receiving the nominations, the Secretary-General forwards them to the Security Council. The Security Council then establishes a list of not less than twenty-two and not more than thirty-three candidates. Due account should be paid to the adequate representation of the principal legal systems of the world. The President of the Security Council transmits the received list to the President of the General Assembly (art. 12 para. 2 (c) ICTR Statute).

b) TIME ALLOWED FOR NOMINATION

The time-period between the call for nominations and the deadline used to be 30 days.42 In 2000, the Security Council amended the ICTR Statute and extended the time-period to a total of now 60 days, thereby conforming it to the time-period allowed for nominations of judges for the ICTY.43

For the election of the first six judges, twelve candidates were nominated. For the election of nine judges to the Trial Chambers in 1998, there were nineteen candidates, one more than the eighteen candidates required at that time.44 For the election of two judges in 2001, when the Appeals Chamber was enlarged, there were five candidates.45

c) TRANSPARENCY OF THE NOMINATION

Like with elections for the ICTY, Curricula vitae of the candidates are submitted to the

39 Cf. UN Doc. A/55/773 of 9 February 2001. 40 Cf. UN Docs A/55/773 of 9 February 2001; A/55/917 of 27 April 2001. 41 ICTR Statute, art.12, para.2 (a) 42 Art. 12 para. 3 (b) of the ICTR Statute as adopted by Security Council resolution 955 (1994). 43 Art. 12 para. 2 (b) of the ICTR Statute, as amended by Security Council resolution 1329 of 30 November 2000, UN Doc. S/RES/1329 (2000), Annex II. 44 Cf. UN Doc. A/55/444 of 5 October 1998. The minimum number of candidates required was increased by Security Council resolution 1329 (2000). 45 Cf. UN Doc. A/55/871 of 30 March 2001.

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General Assembly approximately one month before the date scheduled for the elections.46 The CVs are also accessible to the public. Insofar, it can be referred to the comments made with respect to ICTY.

3.) International Court of Justice

a) NOMINATION IN GENERAL

All States Parties to the Statute of the Court have the right to propose candidates for judges of the Court. However, to avoid political influences in the nomination process, the candidates are not nominated by the governments of the States Parties, but by a group of lawyers from each State, the “national groups” of the Permanent Court of Arbitration.

In the case of Members of the United Nations not represented in the Permanent Court of Arbitration, candidates shall be nominated by national groups appointed for this purpose by their governments under the same conditions as those set out for Member States to the Permanent Court of Arbitration in Article 44 of the 1907 The Hague Convention for the pacific settlement of international disputes (art. 4 (2 ) of the Statute of the ICJ).

Before making the nominations, each national group is recommended to consult the highest court of their State, legal faculties and schools of law, as well as national academies and national sections of international academies devoted to the Security Council (art.6 of the Statute of the ICJ).

No national group may nominate more than four persons, not more than two of whom shall be of their own nationality. In no case may the number of candidates nominated by a group be more than double the number of seats to be filled (art.5 of the Statute of the ICJ)???.

The Secretary-General prepares a list in alphabetical order of all the persons nominated and submits this list to the General Assembly and to the Security Council (art.7 of the Statute of the ICJ).

b) TIME ALLOWED FOR NOMINATION

At least three months before the date of the election, the Secretary-General of the United Nations shall address a written request to the members of the national groups of the Permanent Court of Arbitration of States which are parties to the ICJ Statute, and to the members of the national groups appointed under Article 4 (2) ICJ Statute, inviting them to undertake, within a given time, by national groups, the nomination of persons in a position to accept the duties of a Member of the Court.

4.) International Tribunal for the Law of the Sea

a) NOMINATION IN GENERAL

Regarding the nomination of judges to the ITLOS, the provisions of the ITLOS Statute are quite vague. Art. 4 (1) of the ITLOS Statute provides that each State may propose the nomination of no more than two persons who have the qualifications mentioned in art. 2 of the Statute and that the members of the Tribunal will be elected from among the nominees.

According to M. H. Nordquist47, the reason why the nomination procedure is not defined in

46 Cf. UN Doc. A/55/873 or A/53/444. 47 Myron H. Nordquist, United Nations Convention on the Law of the Sea 1982 (1991), Martins Nijhoff Publishers, p.345.

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the Statute is due to the fact that it is a political, domestic procedure which may defer from State to State.

b) TIME ALLOWED FOR NOMINATION

Art.4, par.2 provides that a written invitation is addressed to the States Parties at least three months before the election, so that they may submit their nominations within two months. The person responsible for the invitation is the Secretary-General of the United Nations in case of the first election and the Registrar of the Tribunal for the subsequent elections. This person, be it the Secretary-General, be it the Registrar, will prepare a list of the nominees with indication of the States Parties which have nominated them.

With the most recent elections, States were invited to submit their nominations on 24 November 1998, six months before the elections took place. The delay for nominations expired on 17 February 1999, about three months before the elections.48 Thus, the time limit for nominations was almost three months instead of the two months provided for in the ITLOS Statute.

c) TRANSPARENCY OF THE NOMINATION

Governments, in the submission of the nominees, have to present a very detailed Curriculum vitae of their candidates. A good example is the Curriculum vitae presented in occasion of the nomination of Judge Gungjian Xu, who succeeded Judge Lihai Zhao from China after the death of the latter in October 2000.49

5.) European Court of Human Rights

a) NOMINATION PROCEDURE IN GENERAL

The procedure starts with an invitation by the Secretary General of the Council of Europe to the governments of the Contracting Parties to nominate candidates. Once the internal procedure of the Contracting Parties is completed, a list with the names of the candidates is transferred to the Committee of Ministers of the Council of Europe, which, on its part, will transfer the list to the Secretary-General of the Council of Europe.

As a matter of fact, the nomination of candidates for the ECHR is left to the Member States. Following art. 21 para. 3 of the Convention, each Member State has to draw up a list of three candidates. It is the governments of the Member States that are responsible for this internal procedure. Each Contracting Party is free to establish a specific procedure on this behalf. Among the different Member States, several systems can be observed. In the United Kingdom, for example, the Government solicited in 1998 candidates through an advertisement in newspapers. Out of 33 applications, five were short-listed and the candidates interviewed by a panel. This panel consisted of persons who were independent from the Government and of a high judicial level. All of these five candidates were interviewed for over one hour on the basis of their curriculum vitae. The panel then made a suggestion which was followed by the government.

Other procedures include an appointment by a high judicial body or by a special committee of human rights experts.50 In most of the recent cases, however, governments have tended to make nominations themselves. Considering the fact that judges can be re-elected (art. 23 para. 1 of the Convention) this leads to the question whether the independence of these candidates is still 48 See press release ITLOS/Press 22 of 24 May 1999 49 For Judge Gungjian Xu’s curriculum vitae cf. the Note by the Registrar of ITLOS, Doc. SPLOS/62 of 6 February 2001, available at www.un.org/Depts/los/meeting_states_parties/documents/SPLOS_61.htm. 50 Schermers, ‘Election of Judges to the European Court Of Human Rights’, in European Law Review, vol. 23 (1998), pp. 568-578 at 574.

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guaranteed. Judges who worked for the government or a similar public institution before their election may want to return to government service after their term of office. On the other hand governments might not be likely to nominate judges for re-election who showed a very critical attitude towards them. In 1998, governments agreed on a non-binding consultation mechanism which includes submission of their list of candidates for an informal examination by an ad hoc group of the permanent representatives of the Member States within the Council of Europe.51 To sum up, the nomination of candidates by the governments can be seen as the weakest part of the election procedure; the government’s interest in the performance of the judges cannot be denied.

b) TIME ALLOWED FOR NOMINATION

It is provided that a period of four months is to be granted to the governments of the Member States for the selection of their candidates and their transmission to the Secretary-General of the Council of Europe (Appendix II of Resolution 1200 of the Parliamentary Assembly of the Council of Europe, adopted on 24 September 1999). Each Member State is obliged to nominate three candidates (art. 22 para. 1 of the Convention); the nominees do not necessarily have to be nationals of the state concerned. There is no particular rule that would extend the delay in case there were not enough nominations. Nevertheless, in 1998 the Parliamentary Assembly rejected lists of nominations of some countries since there had been two weaker candidates as well as a stronger one who was obviously preferred by the government concerned. The Parliamentary Assembly then set a new delay for the nominations so that the procedure was finished three months later than originally foreseen.52

c) TRANSPARENCY OF THE NOMINATION

In order to facilitate comparison amongst the candidates, information on the candidates should be provided on similar lines. For that reason, a model curriculum vitae was established, which is sent to all candidates.53 In the past, most candidates completed it diligently and concisely, but there have also been some candidates who managed to conceal some aspects and underlined others. Besides the model curriculum vitae candidates are also asked to participate in a hearing held by a special ad hoc sub-committee. Critics on these hearings have argued that it is hardly possible to find appropriate members for the special ad hoc sub-committee on the one hand, and that final reports of the ad hoc sub-committee often accepted politically motivated nominations by some governments. With the most recent election procedure the public did not get to know the names of the candidates and the information provided on them. But this might change in the future.54

6.) Inter-American Court of Human Rights

a) NOMINATION PROCEDURE IN GENERAL

Each State Party to the Statute of the Court may nominate up to three candidates, who may be nationals of the State proposing them or of any other Member State of the OAS (Art. 53 (2) of the Convention; art. 7 (2) of the IACHR-Statute). When a slate of three is proposed, at least one of the candidates must be national of a State other than the proposing State (Art. 7 (3) IACHR-Statute;

51 Schermers, ‚Election of Judges to the European Court Of Human Rights’, in European Law Review, vol. 23 (1998), pp. 568-578 at 573. 52 Schermers, ‚Election of Judges to the European Court Of Human Rights’, in European Law Review, vol. 23 (1998), pp. 568-578 at 574. 53 Appendix II of Resolution 1200 of the Parliamentary Assembly of the Council of Europe, adopted on 24 September 1999. 54 Schermers, ‚Election of Judges to the European Court Of Human Rights’, in European Law Review, vol. 23 (1998), pp. 568-578 at 577.

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Art. 53 (2) Convention).

b) TIME ALLOWED FOR NOMINATION

Pursuant to art. 8 of the IACHR-Statute, six months prior to expiration of the term of the judges in office, the Secretary-General of the OAS addresses a written request to each State Party to the Convention to submit a list of candidates within the next ninety days.

The Secretary General of the OAS55 draws up an alphabetical list of the candidates nominated and forwards it to the States Parties at least thirty days, if possible, before the next session of the OAS General Assembly (art. 8 (2) IACHR-Statute).

In case of death or permanent disability of a candidate, the aforementioned time periods are shortened to a period that the Secretary General deems reasonable (Art. 8 (3) IACHR-Statute).

c) TRANSPARENCY

The nomination of a candidate depends only on the decision of each OAS Member State.

Before the OAS General Assembly meets for the election of the judges, the Secretary General of the OAS gathers together both the CVs and any other piece of information, supporting the candidates' merits and qualifications, and distributes this documentation to each Member State.

In this way, each Member State that participates in an election of judges disposes of sufficient information on every single candidate.

7.) European Court of Justice

a) NOMINATION IN GENERAL

The nominations are called for by the Registrar of ECJ. The Judges are nominated by the governments of the Member States so that the European Community has no influence on the nomination itself. It is common for governments to nominate a person who is already a judge at another international court (e.g. the European Court of Human Rights). Also, judges of the European Court of First Instance are often nominated for a seat in the ECJ.

During the whole procedure, much emphasis is laid on mutual trust and agreement between the Member States. To date, the nomination process was always quick and frictionless.

This involves the risk that Member States might not resist temptation and try to influence the Court’s jurisdiction by nominating persons who place their countries’ interests before the goals of the European Community. However, the jurisdiction of the Court proves the contrary. By judging rigorously in favour of Community interests, the Court has become the spearhead of European integration.

b) TIME ALLOWED FOR NOMINATION

There is no time line set for nomination. However, each Member State must nominate a Judge. As it is in each State’s own interest to have a judge sitting for it in the ECJ, nominations

55 The Secretary General of the OAS is the institutional figure involved in the nomination process and directs the General Secretariat of the OAS (OAS Charter, Article 108, Part II, Chapter XVI).. He/she is elected by the OAS General Assembly for a five-year term and can be re-elected only once. He/she may not be succeeded by a person of the same nationality.

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have generally been presented very quickly.

c) TRANSPARENCY OF THE NOMINATION

As the nomination procedure is an internal affair of the Member States, the degrees of transparency vary. As a general rule, the nomination procedure frequently has much in common with the election or nomination procedure for the highest judicial bodies in a Member State.

8.) WTO Dispute Settlement Appellate Body

a) NOMINATION IN GENERAL

The Dispute Settlement Unit makes a call for nominations. Usually the call is for three or four judges (due to the 2-year-cycle in elections). Each WTO member state may propose candidates. There is no minimum number of nominations, but in practice there has always been quite a high number of nominations. In the very first elections in 1995, thirty-two nominations were submitted by twenty-three countries. 56

A special Selection Committee comprising the Director-General of the WTO, and the Chairmen of the General Council, the DSB, the Council for Trade in Goods, the Council for Trade in Services and the TRIPS Council, makes a final proposal for candidates after consultations with WTO Members. 57

b) TIME ALLOWED FOR NOMINATION

The delay between the call for nomination and the deadline for submitting nominations is usually one or two months. However, if there are not enough candidates, the Dispute Settlement Body may decide on an extension of the deadline.

At the occasion of the most recent elections, the call for nominations was issued on 17 April 2001. The deadline for submitting nominations was 29 June 2001. The Selection Committee commenced its work on 2 July 2001.

c) TRANSPARENCY OF THE NOMINATION

It is the Selection Committee that interviews the candidates and tries to obtain as much information about them as possible. The WTO does not reveal list of names to the public. Member States are provided with the list of names as well as with information about them. 58

56 cf. WTO Press Release Press/32 of 29. November 1995 57 cf. WTO Press Releases Press/32 of 29. November 1995, Press/179 of 25 May 2000 and Press/246 of 25 September 2001. 58 cf. www.sunsonline.org/trade/process/followup/1995/09260095.htm and www.sunsonline.org/trade/ process/1995/11300095.htm as of 28 March 2002.

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V. Election Procedures

1.) International Criminal Tribunal for the Former Yugoslavia

a) FROM NOMINATION TO ELECTION

In practice, the nomination and election procedure for permanent judges to the ICTY takes approximately six months. The procedures for the most recent election began in November 2000, when the UN Secretary-General invited States to submit nominations. On 11 January 2001, the Secretary-General transmitted a list of the nominations to the President of the Security Council, noting that only twenty-four nominations had been received.�� On 19 January 2001, the Security Council decided to extend the deadline for nominations until 31 January 2001.�� The elections took place on 14 March 2001.��

Regarding the ad litem Judges, the whole procedure takes less than four months. A call for nominations was made on 15 February 2001, the list of candidates was forwarded to the General Assembly on 27 April 2001 and the elections took place on 12 June 2001.

b) ELECTION PROCEDURE

From the list of candidates transmitted by the President of the Security Council, the General Assembly elects fourteen permanent judges (Art. 13 bis (1) of the ICTY Statute). Candidates receiving the absolute majority of votes of UN Member States and non-Member States with permanent observer missions are elected. Pursuant to rule 151 of the Rules of Procedure of the General Assembly,�� subsequent ballots will be held until the required number of candidates has been elected. If two candidates of the same nationality receive the required majority vote, the one with the higher number of votes is elected.

Regarding the ad litem judges, the General Assembly elects twenty-seven judges from the list of candidates forwarded by the President of the Security Council. Candidates receiving the absolute majority of votes of UN Member States and non-Member States with permanent observer missions are elected.��

When requesting the appointment of a particular ad litem judge, the President of the ICTY is required to bear in mind: 1) the judge’s experience in criminal law, international law, including international humanitarian law and human rights law; 2) the fair representation of female and male candidates; 3) the adequate representation of the principal legal systems of the world and the importance of equitable geographical distribution; and 4) the number of votes the judge received in the General Assembly (Art. 13 ter (2) of the Statute).

c) CURRENT COMPOSITION OF THE TRIBUNAL

59 Letter dated 11 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/61. 60 Security Council Extends Deadline for Nominations of International Tribunal Judges, 19 January 2001, UN Doc. SC/6993. 61 Although twenty-six candidates were nominated, the Philippines subsequently withdrew the candidacy of its nominee. General Assembly Elects 14 Judges to Tribunal for Former Yugoslavia, 14 March 2001, UN Doc. GA/9859. 62 The General Assembly agreed to apply this rule, which relates to elections of Judges of the ICJ. Cf. UN Doc. A/55/918 of 8 May 2001, p. 5. 63 A summary of the whole election procedure can be found in UN Doc. A/55/918 of 8 May 2001.

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The current judges come from the following UN regional groups:64

Regional Group Permanent Judges

Ad-litem Judges currently appointed

Total ICTY Judges

Judges to ICJ

African States 2 1 3 (13%) 3 (20%)

Asian States 3 2 5 (22%) 3 (20%)

Latin American and Caribbean States

2 1 3 (13%) 2 (13.3%)

Eastern European States 0 1 1 (4%) 2 (13.3%)

Western European and other States

9 2 11 (48%) 5 (33.3%)

This comparison with the ICJ clearly shows that the group of Western European and other

States is considerably over-represented among the ICTY Judges. In addition, 10 of the 27 elected ad litem judges belong to this group.

Regarding equal gender representation, only one of the current permanent judges is female. Yet there are five women among the seven ad litem judges currently appointed.

d) TERM OF OFFICE

Both permanent and ad litem judges are elected for four-year terms. According to the procedure described in art. 13 (2) of the ICTY Statute, ad litem judges are appointed to serve in the Trial Chambers for one or more trials, for a cumulative period of up to three years.

Permanent judges who have not completed a trial or appeal begun before the expiry of their terms of office must remain in office to complete the proceedings. This situation arose in the Celebici Case, when the judges’ terms of office were likely to expire before the trial ended. Upon a motion filed by the Prosecutor to address the matter, the Trial Chamber determined that, pursuant to Article 13 (4) of the ICTY Statute, which incorporates Article 13 (3) of the Statute of the International Court of Justice (ICJ) by reference, the judges, though replaced, are required to finish any cases they may have begun.65 On 27 August 1997, at the request of the President of the ICTY, the Security Council adopted Resolution 1126 and extended the judges’ terms of office until the conclusion of the trial.66 The trial ended on 16 November 1998, resulting in the judges sitting in office for one year after their terms were originally due to expire. Although the ICTY Statute provides that permanent judges have the same terms of service as judges of the ICJ, a similar provision does not exist with regard to ad litem judges. However, the trial-specific nature of ad litem appointments suggests that they will also be required to complete trials they have begun.

2.) International Criminal Tribunal for Rwanda

a) FROM NOMINATION TO ELECTION

As a general rule, the whole procedure never took much longer than three months. There is

usually one month between submission of the list of candidates to the General Assembly and the election. The most recent election took place only twenty-five days after submission of the list of candidates and three weeks after the Curricula vitae of the candidates had been forwarded.67 64 This list includes the two judges from the ICTR sitting in the Appeals Chamber. 65 Decision on the Prosecution’s Motion that the Accused State Whether They Will Waive Any Objection to the Trial Chamber Sitting After November 17, 1997, Case No. IT-96-21-T, 23 June 1997. 66 Security Council Resolution 1126 of 27 August 1997. 67 Cf. UN Documents A/55/871 of 30 March 2001 and A/55/873 of 3 April 2001.

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However, only two judges had to be elected. The procedure, which had started on 15 January 2001 with an invitation to submit nominations by the Secretary-General, was finished with the elections taking place on 24 April 2001.68

b) ELECTION PROCEDURE

The GA elects eleven judges. Elected shall be candidates, who receive an absolute majority of the votes of the MS of the UN and of the non-member States maintaining permanent observer missions at the UN Headquarters. In case two candidates of the same nationality obtain the required majority vote, the one who received the higher number of votes shall be considered elected.69 There are no means to ensure equal geographic and gender representation.

c) CURRENT COMPOSITION OF THE TRIBUNAL

At present, judges are from France, Guyana, Austria, Turkey, Sri Lanka, Italy, USA, South Africa, Norway, Senegal, Tanzania, Lesotho, Madagascar, Saint Kittas and Nevis, Slovenia and Russia. Whereas three of the Judges sitting presently in Trial Chambers are women, the Judges of the Appeals Chamber are all men.

d) TERM OF OFFICE

Judges are elected for a four-year term. They can be re-elected.70 The term of Judge Aspegren would have expired on 24 May 1999. However, the General Assembly and the Security Council, endorsed a recommendation of the Secretary-General to prolong his term in order to finish the Rutaganda and Musema cases.71

3.) International Court of Justice

a) FROM NOMINATION TO ELECTION

At least three months before the date of the election, the Secretary-General of the United Nations shall address a written request to the members of the Permanent Court of Arbitration belonging to the States which are parties to the present Statute, and to the members of the national groups appointed under Article 4, paragraph 2, inviting them to undertake, within a given time, by national groups, the nomination of persons in a position to accept the duties of a Member of the Court.

b) ELECTION PROCEDURE

The members of the Court are the Judges elected by the States Parties of the United Nations and by the States Parties to the Statute of the ICJ. A State which is a party to the Statute of the International Court of Justice, but is not a member of the United Nations (Switzerland), may participate in election of the judges in the same manner as the Members of the United Nations. Such a State shall be on an equal footing with the members of the United Nations in respect of those provisions of the Statute which regulate the nominations of candidates for election by the General Assembly (Resolution 264 (III) of the General Assembly of the United Nations, 8 October, 1948).

68 Cf. General Assembly 55th session Official Records: 99th meeting on 24 April 2001, UN Doc. A/55/PV.99. 69 ICTR Statute, art.12, para.2 (d) 70 ICTR Statute, art.12, para.4 71 Cf. Security Council resolution 1241 (1999) and General Assembly decision 53/309 B.

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The judges are elected by the General Assembly and by the Security Council of the United Nations. These organs vote at the same time but separately and independently.

Those candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council shall be elected. In the event of more than one person of the same nationality obtaining an absolute majority of the votes both of The General Assembly and of the Security Council, the eldest of these shall be elected (art.10 of the Statute of the ICJ).

If, after the first meeting held for the purpose of the election, one or more seats remain vacant, a second and, if necessary, a third meeting shall take place. If, after the third meeting, one or more seats still remains vacant, a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council for the purpose of choosing by vote of absolute majority one name for each seat still vacant. Afterwards, this name should be submitted to the General Assembly and the Security Council for their respective acceptance (art. 10, 11 and 12 of the Statute of the ICJ).

In every election, the representation of the main forms of civilisation and of the principal legal systems of the world should be assured.

c) CURRENT COMPOSITION OF THE COURT

At present, judges are from France, China, Japan, Madagaskar, Hungary, Germany, Sierra Leone, Russia, United Kingdom, Venezuela, Netherlands, Brazil, Jordan, United States of America and Egypt. There is only one woman among the judges.

d) TERM OF OFFICE

The members of the Court shall be elected for nine years and may be re-elected. However, the terms of five judges, elected at the first election, expired at the end of three years and the terms of five more judges expired at the end of six years (art.13 of the statute of the ICJ).

It is a triennial election, as each one third of the 15 judges are substituted every three years. With this system a certain continuity of the Courts’ composition is assured.

The average age of the members in their first election is 60, but some judges are above this age.

4.) International Tribunal for the Law of the Sea

a) FROM NOMINATION TO ELECTION

(i) Statutory provisions

Art. 4 of the ITLOS Statute, which deals with nominations and election of judges, makes a formal distinction between the first and subsequent elections as described in the following paragraphs.

Art. 4, par. 2 provides that at least three months before the election, a written invitation is addressed to the States Parties so that they may submit their nominations within two months. The person responsible for the invitation is the Secretary-General of the United Nations in case of the first election and the Registrar of the Tribunal for the subsequent elections. This person, whether it is the Secretary –General or the Registrar, will prepare a list of the nominees with an indication of

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the States Parties which have nominated them and then will submit it to the States before the seventh day of the last month before the date in which the election has been scheduled.

(ii) Practical experiences: elections held in 24 May 199972

Times between the nominations and elections in reality proved to be much longer than the whole 3 months prescribed in the Statute.

In the case of the election of judges whose term began on 1 October 1999, times between nominations and elections have been the following:

Pursuant to Art. 4 (2) and the decision taken at the eighth Meeting of States Parties, the Registrar of the Tribunal addressed a note to the States Parties on 24 November (6 months before the election and not 3 as provided for by art. 4(2)), informing them that the nominations of candidates would be opened on 18 December (5 months before the election) and inviting them to submit the names of the candidates until 17 February 1999. The elections took place on 24 May 1999.73

b) ELECTION PROCEDURE

(i) Statutory provisions

Having stated in Art. 4, par. 3 that the first election should be held within six months of the date of entry into force of the Convention, Art. 4, par.4 describes the election procedure.

At a meeting of States Parties convened by the Secretary-General, the nominees who obtain the largest number of votes and a two third majority of the States Parties present and voting are elected members of the Tribunal. A quorum of two thirds of the States Parties has to achieved at that Meeting. This is the procedure provided for the first election by Art. 4 par.4 of the ITLOS Statute. This rule also provides that States Parties may agree on the election procedure for subsequent elections.

Regarding equal geographic representation, art.3 para.2. of the ITLOS Statute provides that there shall be no fewer than three members from each of the five geographical groups defined by the General Assembly of the UN, i.e. the African Group, the Asian Group, the Latin American and Caribbean Group, the Western European Group and the Eastern European Group.

(ii) Practical experiences: First election at the fifth Meeting of States Parties on 1 August 199674

After the entry into force of the Convention in 1994, the Secretary-General convened Meetings of States Parties according to Art. 319 para. 2 (e) in order to define matters like the elections of the members of the Tribunal and other administrative and financial matters.

During the fifth Meeting of States Parties held in New York from 24 July to 2 August 1996, the 21 members of the Tribunal were elected from a list of 33 candidates. States have solved the question of how to deal with the six seats, for which Art.3 para 2 of the Statute did not provide, by adopting the proposal contained in SPLOS/L.3/Rev.1.

According to this proposal, the 21 members have been elected as follows. 72 Information available at www.un.org/Depts/los/marine_resources_environment/press_releases/sea_1616.htm as of 22/03/02. These are Press Releases were issued by the Department of Public Information (DPI) of the United Nations. They are for informational purposes only and do not constitute a formal record of any proceedings. 73 See press release ITLOS/Press 22 of 24 May 1999. 74 The Document concerning the first election of judges is available at www.un.org/Depts/los/meeting_states_parties/documents/SPLOS_34.htm as of 22 March 2002.

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Five judges from the African Group; Five judges from the Asian Group; Four judges from the Latin American and Caribbean Group; Four judges from the Western European and Other States Group; Three judges from Eastern European Group.

c) CURRENT COMPOSITION OF THE TRIBUNAL

The current composition of the Tribunal is as follows:

Name (Order of precedence) Country Date of expiry of term of office

President P. Chandrasekhara Rao India 30 September 2008 Vice-President L. Dolliver M. Nelson Grenada 30 September 2005 Judges Hugo Caminos Argentina 30 September 2002 Vicente Marotta Rangel Brazil 30 September 2008 Alexander Yankov Bulgaria 30 September 2002 Soji Yamamoto Japan 30 September 2005 Anatoly Lazarevich Kolodkin Russian Federation 30 September 2008 Choon-Ho Park Republic of Korea 30 September 2005 Paul Bamela Engo Cameroon 30 September 2008 Thomas A. Mensah Ghana 30 September 2005 Joseph Akl Lebanon 30 September 2008 David Anderson United Kingdom 30 September 2005 Budislav Vukas Croatia 30 September 2005 Rüdiger Wolfrum Germany 30 September 2008 Tullio Treves Italy 30 September 2002 Mohamed Mouldi Marsit Tunisia 30 September 2005 Gudmundur Eiriksson Iceland 30 September 2002 Tafsir Malick Ndiaye Senegal 30 September 2002 José Luis Jesus Cape Verde 30 September 2008 Gungjian Xu China 30 September 2002

d) TERM OF OFFICE

(i) Statutory provisions and Rules of the Tribunal��

Art. 5 of the Statute provides that the term of office of each member of the Tribunal is of 9 years and that they can be re-elected. Notwithstanding this first statement the article specifies that at the first election members have to be elected with different terms of office. Seven of them will be elected for 9 years, seven others for 6 years and the remaining seven members will be elected for 3 years.

Art. 5, para. 2 states that the members whose terms are to expire at the end of the provided 3 and 6 years have to be chosen by a lot drawn by the Secretary General. Art. 5, para. 3 provides that: “The members of the Tribunal shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any proceedings which they may have begun before the date of their replacement.”

Pursuant to art. 12 of the Statute the President and Vice-President of the Tribunal are elected for a 3-year term and may be re-elected.

According to the Rules of the Tribunal, the term of office of members who have been elected for 3 years begins to run from 1 October following the date of the election (art. 2, para. 1).

75 The rules of the Tribunal are available on the Tribunal web site, i.e. http:// www.iltos.org, under the voice Documents.

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The same date of commencement is provided for the term of office of the President and the Vice-President (art. 10, para. 1).

Nothing is provided for the other members of the Tribunal, but it clearly follows from a document of the meeting of the States Parties�� that the term of office of each member begun on the same date.

(ii) Practical experience: elections held in 24 May 1999��

According to the provisions of the Statute, the terms of office of seven members of the Tribunal who at the first election had been elected for 3 years expired on 30 September 1999. The election took place at the Ninth Meeting of States Parties held in New York from 19 may to 28 May 1999. Out of the seven members whose terms expired, six have been re-elected and just one has been substituted.

Judges Paul Bamela Engo, Josef Akl, P. Chandrasekhara Rao, Anatoly Lazarevich Kolodin, Vincente Marotta Ranger and Rüdiger Wolfrum have been re-elected, while Judge Josef Sinde Warioba has been substituted by Judge Jose Luis Jesus. Pursuant to Art. 5, par. 1, these judges will serve for a period of nine years and their term of office will consequently expire on 30 September 2008.

5.) European Court of Human Rights

a) FROM NOMINATION TO ELECTION

Following Appendix II of Resolution 1200 of the Parliamentary Assembly of the Council of Europe the delay between nomination and election should not exceed four months. This period is to be divided in one and a half and another two and a half months. The first part is to be granted to the Committee of Ministers of the Council of Europe for consideration of the candidates and deliberation. The lists are then transmitted to the Parliamentary Assembly of the Council of Europe that shall elect the judges. However, the period of two and a half months may be longer depending upon the Assembly’s part-sessions. The complete procedure of nomination and election should regularly take eight months. Furthermore it is worth mentioning that there is a period of four months to be granted to all elected judges for both terminating his/her previous employment and setting at the seat of the ECHR in Strasbourg, which makes a total time of twelve months needed for the proceedings.

b) ELECTION PROCEDURE

Regarding art. 22 para. 1 of the Convention “the judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes”. Concerning an equal gender representation, art. 14 of the Rules of Court provides that “the Court shall pursue a policy aimed at securing a balanced representation of the sexes”.

However, it is worth mentioning an idea that was proposed by several authors78 but has not

76Election of the Members of the International Tribunal for the Law of the Sea, Note by the Registrar, Doc. SPLOS/34 of 21 April 1999. Available at www.un.org/Depts/los/meeting_states_parties/documents/SPLOS_34.htm. 77Information available at www.un.org/Depts/los/marine_resources_environment/press_releases/sea_1616.htm as of 22/03/02. These are Press Releases were issued by the Department of Public Information (DPI) of the United Nations. They are for informational purposes only and do not constitute a formal record of any proceedings.

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been transformed into rules of law yet: With respect to a harmonious composition of the ECHR, each Member State should nominate one candidate who is a university lecturer (mindful of long-term development), one with experience in the judiciary (i.e. a judge, public prosecutor, state official, etc.) and one candidate who is a practising barrister or solicitor or a company lawyer (experience in fact-finding). In the most recent nomination proceedings governments have not followed this suggestion. Nevertheless, the Parliamentary Assembly found a reasonable balance of the different legal professions so that the ECHR is now composed by members of all three different groups of professions.

c) CURRENT COMPOSITION OF THE COURT

At the moment, each member state is represented with one judge of its nationality. Only Liechtenstein has sent a judge of Swiss nationality. At the moment there are 11 female judges together with 32 male judges. That makes a female representation of approximately 25%, which, though better than with other courts, can hardly be seen as a balanced representation.

d) TERM OF OFFICE

Following art. 23 of the Convention the judges of the ECHR are elected for a period of six years. They may be re-elected once or even several times (para. 1) until they reach the age of 70 when they must retire (para. 6). Although normally elected for six years, the Convention provides that the term of office of one half of the judges elected at the first election shall expire at the end of three years. (Art. 23 para. 2 of the Convention) Those so elected have been drawn by lot by the Secretary General of the Council of Europe. As a result, there are partial renewals of the Court every three years when one half of the judges is to be elected or re-elected.79 This system is meant to support the continuity of the Court’s work.

6.) Inter-American Court of Human Rights

a) FROM NOMINATION TO ELECTION

Judges to the IACHR are elected by the States Parties to the Convention at the OAS General Assembly from the panel of candidates proposed by those States (Art. 7 par. 1 IACHR-Statute). Pursuant to Art. 7 par. 1 IACHR-Statute, the election takes place, insofar as possible, during the session of the OAS General Assembly immediately prior to the expiration of the term of the outgoing judges.

b) ELECTION PROCEDURE

The judges are elected by secret ballot and by an absolute majority of the States Parties to the Convention (Art. 53, par. 1 Convention; Art. 9, par. 1 IACHR-Statute). Among the candidates obtaining an absolute majority, the candidates with the largest number of votes will be elected. Should several ballots be necessary, the candidates receiving the smallest number of votes are eliminated successively, in the manner determined by the States Parties (Art. 9, par. 2 IACHR-Statute). Both the IACHR-Statute and the Convention provide rules to assure equal geographic representation (Art.52 and 55 Convention; Art. 4 and 10 IACHR-Statute)

78 Schermers, ‚Election of Judges to the European Court Of Human Rights’, in European Law Review, vol. 23 (1998), pp. 568-578 at 572ff; and Krüger, ‚Selecting Judges For The New European Court Of Human Rights’, in Human Rights Law Journal, vol. 17 (1996), pp. 401-404 at 403. 79 http://stars.coe.fr/doc/doc99/EDOC8460.HTM as of 19/03/2002.

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c) CURRENT COMPOSITION OF THE COURT

The present composition of the Court is: Antonio A. Cancado Trinidade (Brasil), President; Maximo Pacheco Gomez (Chile), Vice-President; Hernan Salgado Pesantes (Ecuador); Oliver Jackman (Barbados); Alirio Abreu Burelli (Venezuela); Sergio Garcia Ramirez (Mexico) and Carlos Vicente de Roux Rengifo (Colombia). Judge Sonia Picardo Sotela (Costa Rica), who was elected in 1988, has been the only female judge of the IACHR so far.

d) TERM OF OFFICE

The judges are elected for a term of six years and may be re-elected only once (Art. 54, par. 1 Convention; Art. 5, par. 1 IACHR-Statute). A judge elected to replace a judge whose term has not yet expired shall complete that term (Art. 54, par. 2 Convention; Art. 5, par. 1, IACHR-Statute).

The terms of office of the judges run from January 1 of the year after their election to December 31 of the year in which their terms expire (Art. 5, par. 2 IACHR-Statute).

The judges serve on the Court until the end of their term. Nevertheless, they continue to hear the cases they began to hear and that are still pending, and will not be replaced by newly elected judges in the handling of those cases (Art. 54, par. 3 Convention; Art. 5, par. 3 IACHR-Statute).

7.) European Court of Justice

a) FROM NOMINATION TO ELECTION

The delay between nomination and election is short due to the established practice of the governments of the Member States to agree on the candidate nominated by a State. For example, Judge Antonio Mario La Pergola (Italy) was nominated by the Italian government at the beginning of December 1999 and was appointed on 15 December 1999.

b) ELECTION PROCEDURE

Elections are made by “common accord of the Member States”. The body responsible for appointment of the Judges is the European Council.80 According to a long practice, a person nominated is always accepted. So far, there was no instance of a nominee being rejected. Note that the European Parliament is not involved in the election procedure.

The States entrust each other that the selected Judge has the required competences. This issue was discussed by the British Parliament – what follows is an extract from the protocol of the House of Lords:

“Lord Hon Wilberforce: Of course a system (of judge election) can only work satisfactorily given two things: first, that the electing body which does the actual election has proper information, competence and good sense to enable it to make a choice; and, secondly, that the nomination process is carried out carefully and conscientiously and is submitted as it should be to the electing body.(…)Another example is the European Court of Justice. As your Lordships know, judges there are appointed by common accord of the governments. In practice, by the common accord of the governments, the nomination of those governments is always respected. So much for the nomination side. I believe that this process works well, and can work well, given the two considerations which I have

80 The European Council is composed of representatives of the governments of the Member States.

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mentioned.”81

c) CURRENT COMPOSITION OF THE COURT

Equal geographic representation has never been a problematic issue, as one judge sits in the Court for every Member State. With regard to gender representation, the majority of the Judges and Advocates General are male – currently only two ECJ Judges are female: Judge Fidelma O’Kelly Macken (Ireland) and Judge Ninon Colneric (Germany).82

d) TERMS OF OFFICE

Each Judge or Advocate General is chosen for a six-year term. Every three years, seven or eight Judges and four Advocates Generals are replaced. The Judges and Advocate Generals may be re-elected (article 223 of EC Treaty). There is no age limit for Judges of the ECJ.

8.) WTO Dispute Settlement Appellate Body

a) FROM NOMINATION TO ELECTION

The delay between nomination and election is usually about three months, which is the time the Selection Committee needs for setting up the proposal and for consultations with member states. However, there was a much longer delay prior to the very first elections in 1995 because the EU and US both wanted two members each in the appellate body and blocked the consensus.

The whole process from call for nominations until appointment usually lasts about half a year (e.g. April 2001 – October 2001, December 1999 – April 2000).

b) ELECTION PROCEDURE

Judges are appointed by a consensus vote of the Dispute Settlement Body (DSB). Normally candidates are elected in the first ballot, because the Selection Committee makes its proposal after consultations with member states, so the consensus is ‘informally’ checked in advance.

c) CURRENT COMPOSITION OF THE APPELATE BODY

Judges are supposed to be broadly representative of the WTO members (art.17.3 DSU). The current judges are from Australia, Brazil, Italy, Egypt, India, Japan and the US, thereby representing the different regions of the world as well as the different economic power of WTO members. Former judges were from Egypt, Germany, Japan, New Zealand, The Philippines and Uruguay.

d) TERM OF OFFICE

Judges are elected for a 4-year term. They can be re-elected once.83 Elections take place every two years to guarantee continuity.

81 Consolidated Protocol from the House of Lords for Monday, 13 July 1998, available under http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldhansrd/home.htm as of 20 March 2002. 82 Women and Public International Litigation. Background paper by Jan Linehan prepared for a seminar held by the Project on International Courts and Tribunals and Matrix Chambers in London on 13 July 2001. 83 Art. 17.2 DSU.

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VI. Increase in the Number of Judges

1.) International Criminal Tribunal for the Former Yugoslavia

In 1998, the Security Council increased the number of permanent judges of the International Criminal Tribunal for the Former Yugoslavia by three in order to establish a third Trial Chamber.84

On 30 November 2000, the Security Council established that ICTY needed to “expedite the conclusion of its work at the earliest possible date.”85 With Resolution 1329, it decided to establish a pool of twenty-seven ad-litem judges and add two additional judges to the Appeals Chamber. The new art. 12 (1) of the ICTY Statute now provides that the Chambers shall be composed of sixteen permanent judges and a maximum at any one time of nine ad-litem judges appointed from the pool of twenty-seven elected ad-litem judges. Art. 12 (2) further provides that each of the three Trial Chambers shall be composed of three permanent judges and a maximum at any one time of six ad-litem judges.

2.) International Criminal Tribunal for Rwanda

Initially ICTR Statute provided that the tribunal should have eleven independent judges, six of them in the two Trial Chambers and five in the Appeals Chamber.

The Security Council has subsequently increased the number of judges. Resolution 1165 (1998) established a third Trial Chamber and increased the number of judges to a total of fourteen. According to this amendment, three judges served in each of the Trial Chambers and five judges in the Appeals Chamber.86

With resolution 1329 (2000), the UN Security Council provided for a new rule, according to which two additional judges should be elected.

After these amendments, three judges serve in each of the three Trial Chambers and seven judges sit in the Appeals Chamber. However, the Appeals Chamber, which is at the same time the Appeals Chamber for ICTY, shall be composed of five judges for each hearing.87

3.) International Court of Justice The practice of the International Court of Justice differs from those of the ICTY and ICTR.

For obvious practical reasons, the number of judges has to be smaller than the number of the States Parties. It was established that there should be fifteen Members. Although some States have already tried to increase that number, it has not been changed since then.

84 Security Council Resolution 1166 of 13 May 1998. 85 Security Council Resolution 1329, adopted 30 November 2000, preambular paragraph 5. 86 Security Council Resolution 1165 of 30 April 1998, UN Doc. S/RES/1165 (1998), para.1. 87 Security Council Resolution 1329 of 30 November 2000, UN Doc. S/RES/1329 (2000), Annex II, art.11.

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4.) International Tribunal for the Law of the Sea

Art.17, para.1 of the Statute of the International Tribunal for the Law of the Sea provides that an elected member of the Tribunal who is a national of one of the parties to the dispute retains the right to participate in the case. According to art. 17 paras. 2 through 4 of the ITLOS Statute, if neither of the judges is a national of a State Party involved in a dispute, the State Party concerned may choose a person to sit in the tribunal as a judge ad hoc for the case in question. Judges chosen for these purposes have to fulfil the conditions required of the other members of the Tribunal by the statutory provisions (art. 17 (5) of the ITLOS Statute).

Art. 22 of the Rules of the Tribunal provides for the conditions under which an entity other than a State may choose a judge ad hoc.

Since the establishment of the Tribunal, judges ad hoc have been chosen in the following cases88:

1. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures. Mr. Ivan Shearer (Australia) was jointly nominated by Australia and New Zealand, case nos.3 and 4; 3 August 2000.

2. Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the

South-Eastern Pacific Ocean (Chile/European Community). Mr. Francisco Orrego Vicuña (Chile) was chosen by Chile, case no.7; 29 December 2000.

3. The "Grand Prince" Case (Belize v. France), Prompt Release. Mr. Jean-Pierre Cot (France)

was chosen by France, case no.8; 21 March 2001. 4. The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures. Mr. Alberto Székely

(Mexico) was chosen by Ireland, case no.10; 13 November 2001.

5.) European Court of Human Rights

In general, it is not possible to increase the number of judges of the European Court of Human Rights. Art. 20 of the European Convention on Human Rights provides that the Court shall consist of a number of judges equal to that of the Member States to the Convention. As a matter of fact, the number of judges increases whenever a new state adheres to the Convention. In this case, the same procedures as with regular nominations and elections shall be followed. According to art. 23 (3) of the Convention it is possible to elect one or more judges for a period of other than six years, but not more than nine and not less than three years. This rule is applied when a judge of a new Member State needs to be elected.

6.) Inter-American Court of Human Rights

If a judge called upon to hear a case submitted to the Inter-American Court of Human Rights is a national of any of the States Parties to that case, he can retain his right to hear that case, 88 Available on the Tribunal web site, i.e. www.itlos.org, under the voice General Information, under the voice Judges ad hoc.

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but any other State Party to the case may appoint a person of its choice to serve on the Court as an ad hoc judge (art. 55 (1) of the Convention; art. 10 (1) and (2) IACHR-Statute).

An ad hoc judge can also be appointed by each of the States Parties to a case when there is no national of the States Parties concerned among the judges called upon to hear the case (Art. 55, par. 3 Convention; Art. 10, par. 3 IACHR-Statute).

The President of the Court informs the States Parties through the Secretariat of their right to appoint an ad hoc judge within thirty days of notification of the petition. If two or more States Parties have a common interest in a case, they can jointly appoint one ad hoc judge within thirty days of the last notification of the petition. Each State has fifteen days to propose a candidate. In case of more than one candidate, the President of the Court chooses one ad hoc judge by lot. If the interested States failed to exercise this right within the given time-limit, they are deemed to have waived that right (Art. 18 IACHR Rules of Procedure89 as amended).

7.) European Court of Justice

By request of the European Court of Justice, the European Council can increase the number of Judges or Advocates General in a decision requiring unanimity. In such a case, arts. 223 and 221 of the EC-Treaty, dealing with subsequent elections, may be changed accordingly (art. 222 EC-Treaty).

So far, however, the number of judges was only increased in case of adherence of a new Member State to the European Union. As all Member States have a judge sitting in the ECJ, the Court grew to the same extend as the European Community (or Union) became larger.

8.) WTO Dispute Settlement Appellate Body

The number of judges is fixed in the agreement.90 It can only be changed by amending the DSU (Understanding on Dispute Settlement), which, of course, requires the consent of all States Parties.

89 Rules of Procedure of the Inter-American Court of Human Rights as of 18 January 1991. Texts in T.Buergenthal/D. Shelton, Protecting Human Rights in the Americas, 1995, p. 672. Texts also available on the website http://www1.umn.edu/humanrts/ischr as of 25.03.2002 and on the website http://www.corteidh.or.cr as of 25.03.2002. 90 Art. 17.1 of the Understanding on rules and procedures governing the settlement of disputes (Annex 2 of the WTO Agreement) – DSU.

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VII. Vacancies

1.) International Criminal Tribunal for the Former Yugoslavia

In case of a vacancy among the permanent judges of the International Criminal Tribunal for the Former Yugoslavia, art. 13 bis (2) of the ICTY Statute requires the Secretary-General to appoint a person with the required qualifications for the remainder of the term of office concerned. Art. 13 bis (2) of the Statute further requires the Secretary-General to consult with the Presidents of the Security Council and of the General Assembly before making such an appointment.

Since the International Criminal Tribunal for the Former Yugoslavia was established, seven vacancies have been filled in accordance with this procedure.91

In addition, as Judge Li Haopei died on 6 November 1997, his position was not filled as less than two weeks remained before the expiry of his term.

As for ad-litem judges, the ICTY Statute does not provide rules for their replacement in the event of a vacancy. Probably the Security Council considered the twenty-seven elected ad-litem judges to comprise a sufficient pool for the nine ad-litem judges who can be appointed at any one time, and that any vacancies among ad-litem judges therefore do not have to be filled.

2.) International Criminal Tribunal for Rwanda

Similar to the International Criminal Tribunal for the Former Yugoslavia, in the event of vacancy in the International Criminal Tribunal for Rwanda the Secretary-General appoints a qualified person for the remainder of the term of office concerned. Appointments are made after consultation with the presidents of the Security Council and the General Assembly. This procedure is stipulated in art. 12 (3) of the ICTR Statute.

In practice, vacancies have been filled very quickly. In May 1999, Judge Askoa de Zoysa Gunawardana replaced Judge Dionysius Kondylis, who had resigned on 22 March 1999 due to personal circumstances.92 He had been sworn in only one month before as a member of the new third Trial Chamber. On 31 May 2001, after consultation with the Presidents of the Security Council and the General Assembly, Judge Andrésia Vaz from Senegal was appointed to replace Judge Laity Kama who had died on 6 May 2001.

91 On 2 October 1995, Judge Fouad Abdel-Moneim Riad (Egypt) replaced Judge Georges Abi-Saab (Egypt), who resigned in order to resume his academic activities. – On 6 August 1996, Judge Saad Saood Jan (Pakistan) was appointed to replace Judge Rustam Sidhwa (Pakistan), who resigned for health reasons on 15 July 1996. – On 16 June 1997, Judge Mohamed Shahabuddeen (Guyana) replaced Judge Jules Deschenes (Canada), who resigned for health reasons on 1 May 1997. – On 17 November 1999, Judge Patricia M. Wald (USA) replaced Judge Gabrielle Kirk McDonald following his resignation. – On 1 February 2000, Judge Fausto Pocar (Italy) replaced Judge Antonio Cassese (Italy) who resigned in early 2000. – On 3 April 2000, Judge Liu Daqun (China) replaced Judge Wang Tieya (China) following his resignation. – On 1 March 2001, Judge Mohamed El Habib Fassi Fihri (Morocco) replaced Judge Mohamed Bennouna (Morocco), who resigned on 28 February 2001. 92 Cf. Letter from the Secretary-General to the President of the General Assembly, UN Doc. A/53/1003 of 23 April 1999; ICTR Press Release ICTR\INFO-9-2-186 of 03 June 1999.

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3.) International Court of Justice

In case of a vacancies in the International Court of Justice, the same rules as for normal elections shall apply: the Secretary-General shall, within one month after the vacancy has occurred, invite the members of the Permanent Court of Arbitration to submit nominations according to art. 5 of the Statute. The date of the election shall be fixed by the Security Council (art.14 of the Statute of the ICJ).

4.) International Tribunal for the Law of the Sea

In case of vacancy, art. 6 of the Statute of the International Tribunal for the Law of the Sea provides that the same method laid down for the first election shall be applied. Within one month of the occurrence, the Registrar invites the States Parties to submit nominations in accordance with art.4. of the Statute. The date of the new election is scheduled by the President of the Tribunal after consultation with the States Parties.

Art.6 para.6 states that a member of the Tribunal elected to replace a member whose term of office has not expired shall hold office for the remainder of the predecessor’s term. According to M. H. Norquist93, this article covers the occurrence of the death of a member, other incapacity, resignation or removal.

The Rules of the Tribunal also provide for the case of a vacancy in the Presidency of the Tribunal. Art 13 para.1 of the Statute states that in this case the functions of the President are to be exercised by the Vice-President or, failing him, by the Senior Member. Further, art.14 states that it is up to the Tribunal to decide whether or not the vacancy concerning the Presidency has to be filled during the remainder of the term.

Until now two vacancies have occurred: Judge Lihai Zhao from China died on 10 October 2000 and Judge Edward Arthur Laing from Belize died on 11 September 2001. Acting in accordance with the provisions of the Statute, the Registrar informed the States Parties with a note dated 6 November 2000 of the passing away of Judge Lihai Zaho, announcing that the date of the new election would be fixed by the President of the Tribunal. By a note dated 12 December the Registrar informed the States Parties that the President, after consultation with the States Parties, proposed to hold the election at the Eleventh Meeting of the State Parties, taking place from 14 to 18 May 2001.94

The election took place on 16 May 2001, and Judge Gungjian Xu was elected. Note that he was the only candidate for the vacant post.

Judge Edward Arthur Laing has not been replaced yet.

5.) European Court of Human Rights

In case of vacancy, art. 22 para. 2 of the European Convention on Human Rights states that the same procedure provided for normal elections has to be followed. There is no special delay for 93 Myron H. Nordquist, United Nations Convention on the Law of the Sea 1982 (1991), Martins Nijhoff Publishers, p. 350. 94 To the election of Judge Gungjian Xu cf. the Note by the Registrar of ITLOS, Doc. SPLOS/62 of 6 February 2001, available at www.un.org/Depts/los/meeting_states_parties/documents/SPLOS_61.htm.

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nomination and election. Presumably, all institutions involved are required to act as fast as possible so that the work of the Court does not have to suffer under the vacancy. A judge elected to replace another judge whose term of office had not been expired shall hold office only for the remainder of his predecessor’s term so that a partial renewal of the members of the Court every three years is guaranteed. (art. 23 para. 5 of the Convention).

6.) Inter-American Court of Human Rights

Vacancies in the Court caused by death, permanent disability, resignation or dismissal of judges shall be filled, insofar as possible, at the next session of the Organization of the American States General Assembly. An election is not necessary if the vacancy occurs within six months from the expiration of the term. (art. 6 paras. 1 and. 2 of the IACHR-Statute). In case of a vacancy, the time periods for nomination and election are shortened (art. 8 para. 3 IACHR-Statute).

In order to preserve the quorum95 necessary for deliberations of the Court or in case one or more judges are disqualified (art. 19 IACHR-Statute), the States Parties to the Convention, at a meeting of the OAS Permanent Council, and upon request of the President of the Court, can appoint one or more ad interim judges, who shall serve on the Court until they are replaced by elected judges (art. 6 para. 3 IACHR-Statute).

7.) European Court of Justice

In case of a vacancy, the Registrar of the ECJ invites the Member State of nationality of the Judge whose post has become vacant to nominate a successor. The vacancy periods are usually very brief, as Member States are obliged to select a new Judge or Advocate General.

8.) WTO Dispute Settlement Appellate Body

The DSU96 stipulates that vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessor's term.97

On the last occassion a vacancy had to be filled (Spring 2000), it took two months to appoint a successor.

However, due to the fact that only three judges are working on one case, vacancies among the members of the Appellate Body are not too serious a problem. The functioning of the Appellate Body is not affected by occasional vacancies.

95 The quorum for the deliberations of the Court is five judges (Art. 13 IACHR Rules of Procedure as amended; Art. 56 Inter-American Convention on Human Rights). 96 Understanding on rules and procedures governing the settlement of disputes (Annex 2 of the WTO Agreement) - DSU. 97 Art. 17.2 DSU.

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VIII. Conclusive Remarks

The following is not a conclusion in the sense of an overall evaluation of the results of the research. Instead, some aspects that might be of relevance for the drafting of rules for the election of judges to the International Criminal Court shall be highlighted.

First, regarding the timing for nominations: the statutes of ICTY and ICTR, probably the courts which are most comparable to the ICC, state that there should be at least sixty days for States to submit nominations. As States Parties to the Rome Statute have to follow a certain nomination procedure,98 the delay should not be shorter for the ICC.

Furthermore, in case there should not be enough nominations to ensure equal geographic and gender representation, as well as representation of the principal legal systems of the world,99 or if there are not enough candidates with qualifications required by art. 36 para. 8 (b) of the Rome Statute, it might be necessary to consider an extension of the timeline for nominations and to invite further nominations. Moreover, information on all candidates should be submitted sufficiently in advance of the elections.

Considering the above points as well as the experience of other courts as set out in this study, requests for nominations should be issued between six and three months before the date scheduled for the elections.

There is no general practice of how to deal with nominations being received too late. However, ICTY and ICTR seem to have adopted the favourable procedure of not considering such nominations, with however the admittance of exceptions to this rule.

According to art. 36 para. 4 (a) of the Rome Statute, the States Parties have to submit information on the candidates they wish to nominate. For that purpose, a model Curriculum vitae as with the European Court of Human Rights, or even a model application form should be be considered.

Some High Contracting Parties to the European Convention on Human Rights made public calls for candidates to the European Court of Justice. Though this might produce candidates of considerable independence, art. 36 para. 4 (a) of the Rome Statute probably precludes such a procedure for the ICC.

Article 36 para. 4 (c) provides that an Advisory Committee on nominations might be established. A Subsidiary organ is involved in the nomination procedure for judges to the WTO Dispute Settlement Appellate Body. It is composed of representatives of WTO organs. With regard to this and bearing in mind that the members of such a committee should be independent, the WTO Selection Committee might serve as a model for an ICC Advisory Committee.

Regarding elections, the procedures followed within ICJ, ICTY, ICTR and ITLOS closely resemble each other. In case two candidates obtaining the required majority should receive the same number of votes, further unrestricted ballots will be held until the exact number of judges is reached. The IACHR procedure, on the contrary, provides for restricted subsequent ballots.

ICTY and ICTR procedures provide that, should two candidates of the same nationality be elected, only the one receiving the higher number of votes will be elected. The Statute of the ICJ, however, gives priority to the elder candidate. In this context it is also important to establish who

98 Cf. art. 36 para. 4 (a) of the Rome Statute. 99 Cf. art. 36 para. 8 (s) of the Rome Statute.

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should be competent for determining the nationality of a candidate in accordance with art. 36 para. 7 of the Rome Statute.

The composition of courts with a rule ensuring equal geographic representation (ICJ and ITLOS) is much more balanced than the composition of courts without such a rule (ICTY and ICTR). In the latter courts, the Western European and Other States geographic group tends to be over-represented. As a balanced composition of the ICC might be crucial for acceptance of the court, such a rule definitely deserves consideration.

Women are currently underrepresented on all international benches. However, quota regulations are nowhere seriously considered. A more appropriate way might be to request further nominations from the States Parties if there are considerably less female than male candidates at the closing of nominations.

In conclusion, it is our concern to stress the importance of ensuring independence and impartiality of the judges to the International Criminal Court. The performance of the court as well as its world-wide recognition will largely depend on this. In that context it ought to be considered that states which are still hesitant to ratify the Rome Statute might be more inclined to do so if the court proves to be equal to everybody in the world, irrespective of his or her origins. A balanced geographic and gender representation among the judges is, in its turn, likely to strengthen the independence and impartiality of the court.