By Ruth Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands. Oxford: Oxford University Press. 256pp. Hardback. £60.00/$125.00. ISBN: 9780199580569.
Reviewed by Edward Gordon, retired lawyer and law professor, Honorary Vice President, American Branch, International Law Association. Email: egordon23 [at] gmail.com.
So methodically do four London-based legal scholars, Ruth Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands build their case here that, in addition to being a detached and scholarly treatise, theirs is also something of a multicount indictment of the existing modus operandi for selecting international judges, as well as a civilized call to completely rethink how the process of selection should work.
The empirical justification for the study is established at the outset. Only “limited, largely anecdotal evidence . . . exists about the way judges are appointed to international courts” (p.2), the authors observe, correctly. Their intention is to produce “a systematic empirical picture of the workings of the judicial appointments process” (p.3) for two of the most globally significant international courts: the International Court of Justice (ICJ) and the International Criminal Court (ICC). Given how thoroughly shrouded the process is in self-serving stealth, I doubted that they could pull it off. But they do, and then some.
The first part of the study describes the formal rules governing the selection of judges to the two courts, most of the rules being located in the two courts’ respective constitutive instruments. This is conventional stuff, available elsewhere, though generally not as concisely summarized as here. In fact, if only on this account, I would not be too surprised if their summary supplants ones that have already found their way into assigned and recommended reading materials for both introductory courses and advanced seminars in international organizations, international courts and international law.
But believe me, even if it does, that is not why this book is going to become required reading among scholars, journalists, government lawyers and policy analysts interested in international dispute-settling, adjudicatory or norm-developing institutions. Rather, it is what their imaginative and disciplined probing has uncovered or verified about how the notoriously indulgent formal rules are actually applied in practice, at both the national and international levels. No, it is not sensational enough to stop the presses, but it is a revelation, all the same, and I doubt whether future policy analyses of the selection of international judges, or of the role of governments in it, are going to acquire credibility that fail to take it into account. [*708]
Most of us have had an inkling or two long before now that unbecoming shenanigans were going on in the selection process. Suspicion is one thing; however, empirically based evidence is quite another. This is where the authors break new ground – convincingly. With funding from the British Arts and Humanities Research Council, they employed three ambitious and interactive techniques to ferret out insider experiences and impressions. They undertook a series of case studies of practices in nine specific countries in different regions of the world; they distributed a questionnaire on national nomination processes to “a wide range of international judicial, legal, and governmental actors” (p.180); and they interviewed nineteen staff members (based in New York) of Permanent Missions to the UN, and UN staff members of a range of countries to elicit information on lobbying and election procedures. In total, “106 interviews of approximately one hour’s duration were conducted, which yielded some 82 interview transcripts and 50 file notes” (p.184).
Interviewees were evidently assured that their remarks would not be attributed to them by name or by closely identifying description. The result is a conspicuous level of candor, from persons in the pits of the processes, that by itself merits professional plaudits to all those involved in the study. Equally deserving of admiration is the manifest discretion with which Professor Mackenzie and her colleagues have handled the candor, not least in resisting the temptation to exploit it for juicy sound bites.
Parenthetically, and more out of a sense of professional obligation than deep-felt conviction, I feel compelled to recognize the potential for bias – and thereby the risk to the study’s credibility – implicit in the discretionary authority the authors accorded themselves in determining whose views to solicit, in choosing criteria for weighing the relative importance of certain responses over others, and in reaching some fairly sharp-edged conclusions from what are, after all, something less than perfect data. Given that this looks to have been an exclusively British project, national bias or a cultural agenda, intended or not, is almost certain to be suspected and cannot entirely be ruled out. I mention these caveats reluctantly, not only because theirs is easily the best empirically-based material currently available outside foreign offices – which are not about to share theirs – and because it tends to confirm one’s suspicions about the sorry state of the international judicial appointment process, but also because, given the political sensitivity of the information they solicited, I am not sure how much more the authors could have done to dash such suspicions as remain and yet still have encouraged enough of a free flow of intimate intelligence to make their efforts worthwhile.
A number of points Mackenzie, Malleson, Martin, and Sands make require – and receive – acknowledgment that there are no principles or rules of general application governing the selection of international judges; that no common agreement exists as to what constitutes an ideal international judge, even as to the virtues of judicial independence, or as to whether or to what extent professional training, specific expertise or comparable prior judicial experience are essential or even [*709] desirable; and that such selection criteria as may be presumed to exist are seldom articulated and, when articulated, are celebrated principally, or only, in lip service. Moreover, as they confirm, actual practice (as to nominations and who else’s candidates to support) varies widely from state to state, and from time to time and almost always takes place off the record with every intention of staying that way.
One of the study’s most unsettling, if not quite shocking, revelations is that lobbying for international judgeships, unseemly and corrupting, has become standard practice, not only among individual candidates, but by foreign offices and representatives of blocs of states, as well, and that it goes on for months at a time. Vote-trading is at the core of the campaigning: “In the ICJ and ICC most votes are based on reciprocals, and states now feel a need to conclude them if they want to enhance the prospects for their candidate. . . [T]hese agreements are largely motivated by political considerations rather than merit” (p.122). Worse still, “no clear distinction is made within the UN community between the requirements of a judicial and non-judicial post. Indeed, it would appear that in many cases, the former are traded and lobbied for like any other political position in the UN system” (p.101). As to this aspect of their findings the authors conclude:
It is perhaps less the presence of politics per se in the international judicial selection processes which is a cause for concern than the particular nature of the politicization. It is both endemic and, in contrast to the US Supreme Court, almost entirely lacking in public scrutiny or political accountability. This potentially toxic combination threatens the long-term stability, effectiveness and authority of international courts. In practice states will not contemplate giving up control over elections; nor, arguably, should powerful judicial decision-makers be selected through processes which are wholly disconnected from elected governments. Nevertheless, we would argue that urgent steps need to be taken to limit the growing and pervasive role of extraneous political factors in order to ensure that politics does not overwhelm the prospects for selecting the very best judges for the international courts (p.179).
ICJ judges have generally been drawn from academe, national courts, the diplomatic corps, or the national civil service, the authors report, although as they also note, prior to their election to the Court a majority of ICJ judges had served as legal advisers to foreign ministries. Complaints that not enough of them have served as judges in national courts encounter the rejoinder, among others, that such a background seldom assures familiarity with international law and in any event is susceptible to a parochialism inappropriate to a tribunal meant to accommodate many different legal systems. Similarly, the reasoning goes, experience as judges on national criminal courts seldom assures familiarity with international humanitarian law.
Too pat this, not only because it serves merely to rationalize, not to explain, the paucity of international judges conditioned by prior professional experience to think like judges, but also because it just happens to play into the hands of foreign office lawyers and career diplomats for whom a spot on an international court is what the authors euphemistically refer to as a “natural [*710] part of career progression” (p.58). Besides, too many incidents are occurring, notably in international criminal courts – the ICC and ad hoc tribunals alike – in which a lack of prior hands-on trial experience has proved detrimental to the handling of, for example, tactically obstructive behavior, evaluation of the veracity of witnesses or the reliability of written evidence, and similar forensic problems. These matters are critical in the work of the ICC, where individuals, not states as such, are on trial.
A central concern of the study is the why and therefore of the informality that has become characteristic of nominations and elections. The degree of informality is closely related to the level of politicization and political influence at play, the authors report: the more political, the more informal the process, and vice versa. “A recurring theme across the interviews was the strong vested interest of governments in strictly controlling the nomination process in order to influence the composition of international courts” (p.65). Of nominations at the national level, they say: “Usually there is no identified ‘selection pool’, only a single candidate who is known to the decision-makers, and who may initiate and lobby for nomination” (pp.64-65).
It is interesting to speculate just how much of the politicization the authors describe was built into the genes of the two courts from the moments of their respective conceptions. For the ICJ, this occurred just before and after the First World War. The idea of establishing a permanent international court was first discussed in detail, at the diplomatic level at least, at the second Hague Peace Conference (1907). Agreement was widespread on the desirability of creating a “permanent” court, that is, a standing institution in which the same judges would hear and decide a succession of cases, rather than, as had generally been the case with international arbitration, convening a new panel to hear and decide each new case. But agreement at this heady level of abstraction belied an utter lack of it as to what kind of an institution the “court” should be, and thereby how and according to which criteria its members should be selected and their contributions measured.
Three altogether different models vied for adoption. The Americans, under instructions from Secretary of State Elihu Root, and with support from Great Britain, proposed an institution whose explicit prototype was the U.S. Supreme Court, especially in its role as trier and decider of disputes between individual states – which, after all, even if no longer technically “sovereign” in an international sense, continued to be tenacious in resisting perceived encroachments upon their presumed prerogatives by, among others, the Supreme Court itself. Since over time the Supreme Court had prevailed over this resistance, Root and his colleagues saw every reason to expect that a court like it could succeed on the international level as well. All it had to be charged with doing was hearing and determining the facts in a dispute, then faithfully applying applicable rules of international law – let the chips fall where they may.
For most of the delegates from civil law countries, though, where the chips ended up falling was of the essence of the only function a permanent international court [*711] could realistically be expected to serve, which was to resolve international disputes in a diplomatic way, so as to dissipate underlying hostile energies and thereby undermine nationalistic calls for resort to armed conflict to settle disputes. To most statesmen at the time, a dispute between sovereign states was ripe for settlement by third-party application of international law, as Root was calling for, only when national policy happened to harmonize with the narrow legal considerations upon which the award was thought likely to turn. Rules of international law, as such, existed only in consequence of the consent of states, were applied by each state for itself, and could not be imposed against them by any superior authority with any due regard to national sovereign prerogatives. To expect governments to cede the resolution of matters of national interest to an external agency was just not realistic.
Root, on the other hand, saw diplomatic arbitration itself as unrealistic. In his instructions to members of the U.S. delegation, he wrote:
Granting that diplomats who are engaged in an arbitration have the purest motives, that they act in accordance with the policy they deem to be best for the nations concerned in the controversy, assuming that they thrust aside entirely in their consideration any interests which their own countries may have in the controversy or in securing the favor or averting the displeasure of the parties before them, nevertheless it remains that in such an arbitration the litigant nations find that questions of policy, and not simple questions of fact and law, are submitted to alien determination, and an appreciable part of that sovereignty which it is the function of every nation to exercise for itself in determining its own policy is transferred to the arbitrators. (Root 1907, pp.33-34)
In fact, neither Root nor most other statesmen at the time were invariably willing to grant the purest motives to arbitrators. Root could be blunt in saying so, telling a group of professional arbitrators and peace activists in 1912, for example, that
I do not think the difficulty that stands in the way of arbitration to-day is any unwillingness on the part of the civilized nations of the earth to submit their disputes to impartial decision. I think the difficulty is a doubt on the part of civilized nations as to getting an impartial decision. And that doubt arises from some characteristics of arbitral tribunals, which are very difficult to avoid.
In the first place these tribunals are ordinarily made up of by selecting publicists, men of public affairs, great civil servants, members of the foreign offices, men trained to diplomacy; and the inevitable tendency is, and the result often has been, that the arbitral tribunal simply substitutes itself for the negotiators of the two parties, and negotiates a settlement. Well, that is quite a different thing from submitting your views of right and wrong, your views of the facts and the law on which you base your claims to right, to the decision of a tribunal, of a court. It is merely handing over your interests to somebody to negotiate for you; and there is a very widespread reluctance to do that in regard to many cases; and the nearer the question at issue approaches the verge of the field of policy, the stronger the objection to doing that. (Root 1910, pp.11-12).
As it happens, and sometimes overlooked today, neither the adjudicatory nor the arbitral model was [*712] wholly satisfactory to small states, which, with ample historical justification, feared that neither model would preclude the big powers from dominating the selection of judges/arbitrators, with the judges themselves ending up functioning as mere proxies for their national governments. With this likelihood in mind, and with national vanity at the ready, the delegate from one small state said that the selection of judges would have to respect the principle of sovereign equality. The head of another small state delegation reduced this code phrase to an explicit condition: every state party to the permanent court would have to be entitled to choose one of the judges, presumably one of its own nationals. The French delegate responded that this envisioned a constituent assembly, not a court of law. In the end, the Conference ended in stalemate, unable to agree on what kind of a institution they were creating, and therefore on an appropriate process for selecting its members, or on what qualifications they should ideally possess, or even, to the point of farce, on what to name the thing, since each suggested name was suspected of harboring a hidden agenda capable of insidiously pointing the institution in the direction of one role or another.
The stalemate was not broken until about a decade later, when Root – by this time back in private practice and knee deep in national politics – and his British counterpart, Lord Phillimore, proposed a compromise. To satisfy small states, the judges would be elected by both the Assembly and the Council of what was to become the League of Nations, the Assembly sure to be controlled by small states, if they could act in unison, the latter by the big powers. To satisfy those, on the other hand, who were concerned with the likelihood that this method would encourage politicization, the compromise proposed that the nomination of judges would be made, in each case, not by states themselves, but by groups of persons each state were free to nominate to an institution established in 1902 called the Permanent Court of Arbitration (PCA) which, its name notwithstanding, was – and still is – not a court at all, but simply a registry of persons available to act as arbitrators, should states wish to avail themselves of their services. Each state party to the PCA was/is free to name four persons to the registry, persons presumably suited by background, training and professional reputation to serve as arbitrators. The Root-Phillimore compromise proposed that these “National Groups of Four” would do the nominating, and then only after consulting with professional groups within their own country. One could assume, could one not, that persons deemed qualified to act as arbitrators would be more apt to be concerned with potential nominees’ professional qualifications, and correspondingly less influenced by political considerations, than governments themselves would be, especially after consulting with other professionals.
The first part of the compromise was well-received and found its way into the constitutive instruments of the institution subsequently created, the Permanent Court of International Justice (PCIJ), as well as its post-World War II successor, the ICJ. The second part proved controversial, however, and while it is available as an option in both instruments, in neither is it obligatory. In practice, it has been all but ignored by most states and reduced to a public [*713] relations ritual in others. As Mackenzie, Malleson, Martin, and Sands say,
The PCA national group or equivalent is often a bit-part player, usually comprised of government representatives or those with strong links to government. It frequently does not make the final nomination decision and may not even be involved at all. There is generally no outside consultation or, if there is, it is very limited. The lack of transparency limits accountability and confines knowledge about the process to a very small group of insiders (p.65).
Other than in the U.S. and Great Britain, that is, a distinction maintained and borne proudly within the ranks of the international law community in the two countries for as long as I can remember. But shortly after OUP formally announced publication of the Mackenzie study, and almost immediately after China announced that its nominee to fill the vacancy created by the resignation of Shi Jiuyong from the ICJ would be Xue Hanquin, a career government lawyer serving at the time as deputy legal adviser in its foreign ministry, the U.S., not to be outdone, announced that its nominee to fill the vacancy created by the resignation of Thomas Buergenthal, the U.S. national on the Court, would be none other than Joan Donoghue, a career government lawyer serving at the time as the State Department’s Principal Deputy Legal Adviser.
As a matter of form, of course, the U.S. National Group of Four made the nomination, not the U.S. government, much less the State Department. Still, one could not help but notice that the Group’s four members consisted of the State Department’s current Legal Adviser, two of his predecessors in that position, and a former deputy legal adviser who himself had gone from that position to a spot on the Court. Nor could one entirely overlook the fact that, after sanctimoniously soliciting and then receiving recommendations from the professional community, the Group ignored them.
Commenting in the popular international law blog, Opinio Juris, on the nominee herself, Professor Roger P. Alford (Pepperdine) spoke for many in the international law community in the U.S. when he said: “Donoghue was an extremely safe choice for the State Department lawyers to make . . . .[O]ne seriously doubts that [she] will be voting against the United States any time soon.” Ave atque vale, Root-Phillimore – but with plenty of spin on the vale.
As to the ICC, which has been around for only a decade or so, while it is too soon to throw up one’s hands in dismay, it is not too soon to wince at what Mackenzie and company report that bear upon the selection of judges to it. If the ICC is meant to be a professionally disciplined and depoliticized criminal court, conscientiously applying and refining a still nascent body of international criminal law, it clearly is going to need a change in the attitudes and processes used in selecting its judges. [*714]
Root, Elihu. 1907. “The American Sentiment of Humanity,” in PROCEEDINGS OF THE NATIONAL ARBITRATION AND & PEACE CONGRESS,, as quoted in D. P. Myres, “The Origin of the Hague Arbitral Courts,” 1916, AMERICAN JOURNAL OF INTERNATIONAL LAW, 10: 270, 272.
Root, Elihu. 1910. “The Importance of Judicial Settlement,” in PROCEEDINGS OF THE INTERNATIONAL CONFERENCE OF THE AMERICAN SOCIETY FOR JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES, at 11-12.
© Copyright 2010 by the author, Edward Gordon.