International courts and tribunals interest group: judicial selection.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 11:15 a.m., Thursday, March 24, by its moderator, Brooks W. Daly of the Permanent Court of Arbitration, who introduced the panelists: Patrick Robinson of the International Criminal Tribunal for the Former Yugoslavia; John B. Bellinger III of Arnold & Porter; Eloise Obadia of the International Centre for Settlement of Investment Disputes; and Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations.

INTRODUCTORY REMARKS BY BROOKS W. DALY

Welcome to this session on Judicial Selection, a panel proposed by the Interest Group on International Courts and Tribunals and co-sponsored by the Government Attorneys Interest Group.

Before we move to our panel, I'd like to present a bit of background. The number of international courts and tribunals has increased greatly in recent decades. Their jurisdiction spans trade' investment, human rights, and territorial disputes. The legitimacy of these institutions rests not only on the qualifications and independence of their judges and arbitrators, but also on the public's belief that they have been appointed in a fair manner--that is, that these are the best people for the job. Appointments should not be the product of a system of political patronage or cronyism if the public is to trust these tribunals.

Several commentators have voiced doubts about whether the existing selection procedures are succeeding in enhancing the legitimacy of this growing number of courts. Most sensationally, a British newspaper last year went so far as to say that, "[a] toxic system for appointing the world's most senior judges is fundamentally undermining the legitimacy of international courts." (1)

In keeping with the theme of this year's conference, "Harmony and Dissonance," we should keep in mind that harmonization is probably not possible between all courts and tribunals. There is no single mechanism that will work. Some tribunals have global reach, with broad membership, but only a few states can have their nationals on the court at any one time. Some are smaller regional bodies, allowing every state to have an appointee. In arbitral procedure, parties may expect to participate in the constitution of the tribunal. Also, what is the best profile for the judge or arbitrator? There will always be dissonance there.

Our first panelist is Judge Patrick Robinson, who has been honored at ASIL this year, and he is the President of the International Criminal Tribunal for the Former Yugoslavia (ICTY). He was first elected a judge to the ICTY in 1998 and has been the president since 2008. There can be no greater need for legitimacy than in a tribunal presiding over a former head of state, as Judge Robinson did when he headed Trial Chamber Three in the Slobodan Milosevic trial.

Judge Robinson will give us a review of the appointment procedure at the ICTY from his personal experience. He combines experience in international law, diplomacy, and civil service. He was Crown Counsel in the Office of the Director of Public Prosecutions in Jamaica. He has many of the facets in his background that we will see in the most successful international judges.

Our second panelist is John Bellinger, partner at Arnold & Porter. He has had a number of senior positions in the U.S. government, and most recently was Legal Adviser to the U.S. Department of State from 2005 to 2009. In this capacity he would have been very intimately involved with U.S. policy on judicial appointments. His role in this area has not ended with his departure from U.S. government. He remains a member of the Permanent Court of Arbitration (PCA), which means that he is also a U.S. member of the national group under the Statute of the International Court of Justice that nominates judges for election to the International Court of Justice (ICJ).

Our next panelist will be Eloise Obadia. Eloise is senior counsel and team leader at the International Centre for Settlement of Investment Disputes at the World Bank (ICSID). Prior to joining ICSID, Eloise practiced law with Curtis, Mallet-Prevost, Colt and Mosle in Paris. ICSID constitutes both arbitral tribunals and ad hoc committees that may annul arbitral awards on certain limited grounds. Last year, ad hoc committees annulled three awards, in whole or in part. This undermined the idea that annulment of an arbitral award is an exceptional remedy--it seems to be rather a typical remedy--and some criticism directed at these decisions raised the question as to whether the right people had been appointed to these ad hoc committees. Eloise will shed some light on this debate. Is there really any evidence that the selection process is not functioning properly, or are these just complaints of sore losers who enjoy the system as long as they win, but when they lose, look to attack its structure?

Eloise's discussion, I'm sure, will be of interest to Hans Corell, as an ICSID panelist himself, and particularly to President Robinson, who was one of the members of the ad hoc committee that annulled the Enron v. Argentina award. (2) This was a $106 million award, and after several years of proceedings, and a fully reasoned award, an ad hoc committee annulled it. By coincidence, I just heard someone in the lobby today saying that Enron was the high-water mark of judicial activism in ad hoc committees.

Our last panelist is Hans Corell. He is the former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations. He has also held numerous senior appointments in the Swedish government and has been a national court judge in Sweden. He, like John Bellinger, is a member of the PCA, so he is a member of the Swedish National Group for nomination of ICJ judges. He may therefore have something to add to what John says, but what I am most interested in hearing from Mr. Corell is his remarks on the International Criminal Court (ICC). He has been following very carefully the nomination process there, and he will be able to enlighten us as to the controversy surrounding that institution.

I will make one reference to some of the controversy. Critics of the ICC point to a particular case of a judge who did not have a law degree or any legal qualifications but was nevertheless appointed to the International Criminal Court. It would be interesting to know how this happened, because the Rome Statute says that one must have established competence in criminal law and procedure or that one must have extensive experience in a professional legal capacity. Mr. Corell will be able to tell us whether this is true, and if so, what is being done to address this problem.

BROOKS W. DALY, President of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

(1) Afua Hirsch, System for Appointing Judges "Undermining International Courts," GUARDIAN, Sept. 8, 2010, available at http://www.guardian.co.uk/law/2010/sep/08/law-international- court-justice-legal.

(2) Enron Creditors Recovery Corp. v. Argentine Republic., Decision on Annulment, ICSID Case No. ARB/01/3 (July 30, 2010), available at http://ita.law.uvic.ca/documents/EnronAnnulmentDecision.pdf.

REMARKS BY PATRICK LIPTON ROBINSON

I am not sure whether I have the formula to detoxify this contaminated system, as described by the journalist, but let me start by telling you what the qualifications for a judge are for my tribunal. Judges must be persons of high moral character, impartiality, and integrity, and they must possess the qualifications for appointment to the highest judicial offices in their countries.

The election process is as follows: the Secretary-General of the United Nations sends out an invitation to UN member states to nominate judges. Each state may nominate up to two candidates. The Secretary-General forwards the nominations to the Security Council, which creates a list of not fewer than twenty-eight and not more than forty-two candidates, taking into account the adequate representation of the principal legal systems of the world. Finally, the president of the Council transmits the list of candidates to the president of the General Assembly, and the Assembly elects fourteen permanent judges. So the final process is the election by the 192 member states of the United Nations of the fourteen permanent judges.

There is, in my view, no significant difference between this process of election of judges of the Tribunal and the process of the election of persons to other UN bodies which do not carry out judicial functions. In both cases, intensive lobbying is done at the UN, and for those of you who are familiar with it, this would be done in the famous Indonesian lounge and in capitals. The judicial candidates take a seat in the lounge with their countries' ambassadors to the UN or with the Missions Elections Officer. In a typical day, they would lobby twelve to fifteen countries. Now this is the very same activity carried out by a candidate for the Committee on the Elimination of Racial Discrimination, or any of the other myriad of UN committees and bodies. Of course, as I said, lobbying is done in the capitals, and candidates from countries with embassies and consulates in a large number of countries have an advantage.

But here's the point: the principal factor in a UN election, whether it is for a judicial or a non-judicial post, is not the profile of the candidate; it is the political profile of his country. I am not saying that the candidate's credentials are unimportant, but suppose that the country of the candidate's nationality is experiencing a serious political problem in its international relations--this will adversely affect the candidate's chances, no matter how brilliant a person he or she is.

I can give you a famous example. After the Falklands War, the candidate from the United Kingdom for the International Law Commission, a very highly qualified individual, was not elected--not because he lacked qualifications but because his country's stocks were...

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