Nomination and Election of Judges to International Courts

Transcription

1 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: ! Fax: ! elsa@brutele.be

2 Foreword 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 nonpolitical 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 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 Würzburg Germany matthiasgoldmann@gmx.de

3 Table of Contents 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 ) Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia ) Jurisdiction of the International Criminal Tribunal for Rwanda ) Jurisdiction of the International Court of Justice ) Jurisdiction of the International Tribunal for the Law of the Sea ) Jurisdiction of the European Court of Human Rights ) Jurisdiction of the Inter-American Court of Human Rights ) Jurisdiction of the European Court of Justice ) Jurisdiction of the WTO Dispute Settlement Appellate Body... 6 III. REQUIREMENTS FOR JUDGES ) International Criminal Tribunal for the Former Yugoslavia ) International Criminal Tribunal for Rwanda ) International Court of Justice ) International Tribunal for the Law of the Sea ) European Court of Human rights ) Inter-American Court of Human Rights ) European Court of Justice ) The WTO Appellate Body... 9 IV. NOMINATION PROCEDURES ) International Criminal Tribunal for the Former Yugoslavia a) Nomination procedure in general b) Time allowed for nomination c) Transparency of the Nomination ) International Criminal Tribunal for Rwanda a) Nomination in general b) Time allowed for nomination c) Transparency of the Nomination ) International Court of Justice a) Nomination in general b) Time allowed for nomination ) International Tribunal for the Law of the Sea a) Nomination in General 12

4 Table of Contents b) Time allowed for Nomination c) Transparency of the Nomination ) European Court of Human Rights a) Nomination procedure in general b) Time allowed for Nomination c) Transparency of the nomination ) Inter-American Court of Human Rights a) Nomination procedure in general b) Time allowed for nomination c) Transparency ) European Court of Justice a) Nomination in general b) Time Allowed for Nomination c) Transparency of the Nomination ) WTO Dispute Settlement Appellate Body a) Nomination in general b) Time allowed for nomination c) Transparency of the nomination V. ELECTION PROCEDURES ) International Criminal Tribunal for the Former Yugoslavia a) From nomination to election b) Election procedure c) Current Composition of the Tribunal d) Term of office ) International Criminal Tribunal for Rwanda a) From Nomination to Election b) Election Procedure c) Current Composition of the Tribunal d) Term of office ) International Court of Justice a) From nomination to election b) Election procedure c) Current Composition of the Court d) Term of office ) International Tribunal for the Law of the Sea a) From nomination to election (i) Statutory provisions (ii) Practical experiences: elections held in 24 May b) Election Procedure (i) Statutory provisions (ii) Practical experiences: First election at the fifth Meeting of States Parties on 1 August c) Current Composition of the Tribunal d) Term of Office (i) Statutory provisions and Rules of the Tribunal (ii) Practical experience: elections held in 24 May ) European Court of Human Rights a) From nomination to election b) Election procedure c) Current Composition of the Court d) Term of office ) Inter-American Court of Human Rights a) From nomination to election b) Election procedure c) Current composition of the Court d) Term of office ) E C t f J ti 25

5 Table of Contents a) From Nomination to Election b) Election procedure c) Current Composition of the Court d) Terms of Office ) WTO Dispute Settlement Appellate Body a) From nomination to election b) Election procedure c) Current Composition of the Appelate Body d) Term of office VI. INCREASE IN THE NUMBER OF JUDGES ) International Criminal Tribunal for the Former Yugoslavia ) International Criminal Tribunal for Rwanda ) International Court of Justice ) International Tribunal for the Law of the Sea ) European Court of Human Rights ) Inter-American Court of Human Rights ) European Court of Justice ) WTO Appellate Body VII. VACANCIES ) International Criminal Tribunal for the Former Yugoslavia ) International Criminal Tribunal for Rwanda ) International Court of Justice ) International Tribunal for the Law of the Sea ) European Court of Human Rights ) Inter-American Court of Human Rights ) European Court of Justice ) WTO Appellate Body VIII. CONCLUSIVE REMARKS... 33

6 The Authors 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 [INTER-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 8 th session of the ICC-PrepCom. [ICTY, INTRODUCTION, 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 8 th 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 8 th session of the ICC-PrepCom. [INT. 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 Member of ELSA Coimbra. Organisation Committee of a Conference on the ICC in the Portuguese Parliament. Member of the ELSA Delegation to the 8 th session of the ICC-PrepCom. [INTERNATIONAL 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 Member of the ELSA Delegation to the 8 th session of the ICC-PrepCom. [WTO DISPUTE SETTLEMENT APPELATE BODY]

7 Abbreviations 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

8 I. Introduction 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, For copies please contact ELSA International or Hans-Michael

9 II. Jurisdiction of the Courts 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 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 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.

10 II. Jurisdiction of the Courts 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 59 10, 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 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 , 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 paolasacchi72@hotmail.com. 12 Reproduced in International Legal Materials, vol. XXI (1982), pp Available at agreements/convention overview part xi.htm as of

11 II. Jurisdiction of the Courts 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 Rights 14 (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, nongovernmental 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 Rights 16 (hereinafter referred to as the Convention ), on July 18, The Court was established in 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 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, 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, The American Convention on Human Rights [O.A.S. Treaty Series No. 36, UNTS vol p , 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, 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

12 II. Jurisdiction of the Courts apply and interpret the Convention (Art. 1 Convention; Art. 1 Statute of the IACHR 18, hereinafter referred to as "IACHR-Statute"). The Convention sets forth the legal basis for the creation of the IACHR and its jurisdiction 19. 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 jurisdiction 20, 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 complaints 21 (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 jurisdiction 22. As to its advisory jurisdiction, any Member State of the OAS or authorized organ of OAS 23 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 amended 24 ). 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, 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 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, Finally, on November 24, 2000, the Court introduced new Rules of Procedure, which took effect on June 1, Rules of Procedure of the IACHR of 18 January 1991: texts in T.Buergenthal/D. Shelton, Protecting Human Rights in the Americas, 1995, p Texts available also on the website as to and on the website

13 II. Jurisdiction of the Courts 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-Treaty 26 ). 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 If member states of the WTO cannot settle a dispute about the violation of trade rules by way of consultations, a panel 28 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 report 29 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 decision 32 (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 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 Art. 6 of the Understanding on rules and procedures governing the settlement of disputes (Annex 2 of the WTO Agreement) - DSU. 29 art DSU 30 art DSU 31 art. 17 DSU 32 art. 16.4, art DSU

14 III. Requirements for Judges 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

15 III. Requirements for Judges 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 members 34 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.1 35, 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. 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

16 III. Requirements for Judges 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 Appellate Body The Appellate Body consists of seven judges (art 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 of DSU). Judges are supposed to be broadly representative of the WTO members (art.17.3 DSU).

17 VI. Nomination 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 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 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 Letter dated 11 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/ Security Council Extends Deadline for Nominations of International Tribunal Judges, 19 January 2001, UN Doc. SC/ 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

18 VI. Nomination 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 ) 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 nominations 41. 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 Cf. UN Docs A/55/773 of 9 February 2001; A/55/917 of 27 April 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 The minimum number of candidates required was increased by Security Council resolution 1329 (2000).

19 VI. Nomination 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. Nordquist 47, the reason why the nomination procedure is not defined in 46 Cf. UN Doc. A/55/873 or A/53/ Myron H. Nordquist, United Nations Convention on the Law of the Sea 1982 (1991), Martins Nijhoff