The Uniqueness of WTO Court Elections as Compared to other Multilateral Courts
Alexandra Dobre* and Steve Charnovitz
The process and structure of multilateral court elections differ across courts in criteria such as judges’ term lengths, nomination and appointment procedures, possibility for reappointment, desired qualifications, and more. In analyzing the International Criminal Court, International Court of Justice, the World Trade Organization Appellate Body, and the Law of the Sea Tribunal, we explore the differences between these courts across the dimensions listed above. Though the procedures vary slightly across the courts, most notably, the World Trade Organization Appellate Body is the only international court where the election of a judge is dependent on a consensus voting rule. This has important implications for the nomination and selection of judges on the WTO Appellate Body and explains why a single country can disrupt the WTO court in a way that the country would not be able to do to other leading international courts.
The International Criminal Court
The International Criminal Court sets out its nomination procedures in the Rome Statute, a multilateral treaty that serves as the Court’s governing document.1 Currently, the judicial division consists of eighteen judges, all housed within one of three chambers: Pre-Trial, Trial, and Appeals Chambers. In the event of a vacancy, individuals may be nominated to fill the court. The Rome Statute outlines individuals “...shall be chosen among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.2 Nominees must be well-versed in criminal law, international law, and/or humanitarian law. Any of the 123 State Parties can submit a nomination by submitting a statement outlining how the candidate fulfills the previously mentioned requirements. The individual need not be a national of that country’s state party but must be a national of a party on the Court.
After the nominees have been proposed, the Assembly of States Parties proceeds in electing the judges from two candidate lists. The first list contains candidates with criminal law qualifications, while the other with candidates possessing humanitarian and/or international law qualifications. These lists are necessary in the election, where at least nine judges must be selected from the first list and at least five from the second. The candidates are then elected by a secret ballot at an Assembly meeting, where the 18 candidates who obtain the highest number of votes with a two-thirds majority of States Parties present and voting are elected. There are certain geographical distribution requirements of judges selected; per the Rome Statute, there cannot be two judges with nationalities from the same member State. This is to ensure equitable geographical representation and principal legal systems of the world. Upon being elected, judges are permitted to hold office for nine years. However, in the event of a vacancy, the judge that fills the seat on the court may run for re-election given that the period was three years or less.
The International Court of Justice
The International Court of Justice is the principal judicial body of the United Nations with a focus in international law. The Judicial Body of the Court consists of 15 judges, each serving nine-year terms and are eligible for reappointment to the Court.
State Parties belonging to the Statute of the Court may nominate candidates for a judgeship. However, it is not the state governments themselves that propose the individual, but the Permanent Court of Arbitration (PCA) that makes the selection. The PCA is made up of different National Groups, each representing one country in the organization, and each group may nominate up to four persons. To be elected to the ICJ, at least one National Group must have nominated the candidate at hand. The selection process typically begins nine months before the election (with a minimum of three months in advance) or, in the case of a special election, within one month of a new vacancy.3 Each National Group is expected to consult its highest court of justice, legal institutions, and academies within their country with the decision. Once each National Group has proposed their candidates, the Secretary-General of the U.N. drafts a list with the candidates and submits it to both the General Assembly and the Security Council.
In order to be elected, judges must win absolute majority in two different bodies—the General Assembly as well as the United Nations’ Security Council. If there is not a sufficient number of candidates that reach the threshold, the election may continue in subsequent rounds. The nomination and election processes happen every three years, where five judges are up for election each time. In the event of a sudden vacancy, a special election takes place to replace the seat with an individual that will fulfill the rest of the term.
Judges are nominated for their high moral characters and their qualifications, which are expected to be consistent with “the highest judicial office in their home states” or with competence in international law.4 Up to four candidates can be recommended conditional on the fact that no more than two of these candidates are of the country’s nationality. Additionally, there exists quotas in the breakdown of seats by nationality: five seats are reserved for Western countries, three for African states, two for Eastern European states, three for Asian states, two for Latin American states, and two for Caribbean states.
The World Trade Organization Appellate Body
The Appellate Body of the World Trade Organization was established in 1995 under Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). The Appellate Body, composed of seven individuals, hears appeals from panel cases surrounding disputes by WTO member states.5
Judges in the Appellate Body are experts in their fields of law and international trade and are unaffiliated with any government entity. They are selected for four-year terms to the body through an appointment process conducted by the Dispute Settlement Body (DSB), as outlined in the Dispute Settlement Understanding (DSU). Notably, the judges are permitted to be re-appointed one time at the end of their term. In the event of a vacancy, new members will be appointed as needed to hold the office for the remainder of the term. Given that the body undergoes the appointment process rather than a formal nomination and election process, there are less procedures that structure the Appellate Body’s judicial makeup.
Notably, the DSU does not outline many detailed procedures to nominating and appointing members to the Appellate Body. In practice, nominees are pre-selected by their nominating governments, and then, the DSB appoints the judge via a consensus decision. According to close observers, the most important process is the pre-selection stage–nominating governments seek potential candidates that have a demonstrated knowledge of the WTO system, share concerns of the nominating country, and have the ability to influence other members on the Appellate Body.6 Additionally, candidates’ views on DSU reforms are considered important in determining DSB likelihood for appointment.7
As mentioned earlier, Appellate Body judges have the ability to be reappointed up to one time at the end of their four-year terms. Commentators have observed in the past how governments’ decisions to re-nominate their candidates have been dependent on behaviors of their members on the bench. If a member does not fulfill the interests of the nominating country, the government may choose to not re-nominate the judge at the end of their term.8
The International Tribunal for the Law of the Sea
The International Tribunal for the Law of the Sea, created by the mandate of the Third United Nations Conference on the Law of the Sea, consists of 168 signatories and 167 states plus the European Union. The judicial body of the Tribunal is made up of 21 that serve from different States’ Parties.
In the nomination process of judges, each State Party may nominate up to two candidates. These individuals are expected to be the top tier of excellence in terms of “fairness and integrity and of recognized competence in the field of the law of the sea”.9 Once nominated, candidates are elected via a secret ballot by the States Parties to the Convention. In order to be elected, the candidates must receive that largest number of votes with two-thirds of the States Parties present and voting.10 Like other multilateral courts, no two members may be nationals of the same state “...to assure an equitable geographical representation”11 within the judicial body. Each judge is elected for nine years and one-third of the court’s seats expire every three years. The judges are eligible for re-election.
Summary
In summary, as shown in the Chart below, the WTO Appellate Body is the only major international court that follows a consensus rule for appointing new judges to the bench. This reliance on a non-robust consensus process goes a long way toward explaining the WTO court can be vulnerable to the volitions of a single government.
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*Ms. Dobre is an economics student at George Washington University. The research in this study was supported by the GWU Institute for International Economic Policy.
[1] “Rome Statute of the International Criminal Court” (International Criminal Court, January 1998), https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.
2 Ibid, 17.
3 Article 5-1, Statute of the International Court of Justice, https://www.icj-cij.org/en/statute.
4 “Members of the Court,” International Court of Justice, https://www.icj-cij.org/en/members.
5 “Dispute Settlement: Appellate Body,” World Trade Organization, https://www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm.
6 Manfred Elsig and Mark A. Pollack, “Agents, trustees, and international courts: The politics of judicial appointment at the World Trade Organization”, European Journal of International Relations, 31-34.
7 Ibid, 31.
8 Ibid, 35.
10 Article 2: Composition, Statute of the International Tribunal of the Law of the Sea, https://www.itlos.org/fileadmin/itlos/documents/basic_texts/statute_en.pdf.
11Article 4: Nominations and Elections, Statute of the International Tribunal of the Law of the Sea,https://www.itlos.org/fileadmin/itlos/documents/basic_texts/statute_en.pdf.
[1]2Article 2: Composition, Statute of the International Tribunal of the Law of the Sea, https://www.itlos.org/fileadmin/itlos/documents/basic_texts/statute_en.pdf
Multilateral Court Elections: A Summary |
||||
International Criminal Court |
International Court of Justice |
World Trade Organization Appellate Body |
International Tribunal for the Law of the Sea |
|
Number of judges |
15 judges |
15 judges |
7 judges |
21 judges |
Length of term |
9 years |
9 years |
4 years |
9 years |
Reappointment? |
Not eligible for reappointment |
Eligible for reappointment |
Can only be reappointed once |
Eligible for reappointment |
Desired qualifications |
· Experience in criminal law and/or international law · Experience as a judge in criminal proceedings · Fluent in one language of the Court |
· Experience in criminal law and/or international law |
· Expertise in law and international trade · Broadly representative of membership (geography, development, legal systems) · Unaffiliated with government · Share concerns with nominating countries on key issues. |
· Expertise in law of the sea |
Nomination process |
· Nominated by State Party · Follow nomination procedure used for appointing highest judicial offices of the respective State · Statement of how candidates fulfill requirements |
· Nominated by national groups within Permanent Court of Arbitration · National groups consult high courts of justice, legal institutions, and academic institutions within their countries · 3-9 months before an election · No more than 4 nominees per national group · List is submitted to the General Assembly and the Security Council |
· Nominated by the Dispute Settlement Body · Intense screening and strategic screening process by each country |
· Each State Party may nominate up to 2 candidates |
Election/appointment process |
· Elected by the Assembly of States Parties via secret ballot · One representative from each State Party cast a vote for one candidate from List A and one from List B · At least 9 judges selected from List A (criminal law candidates) · At least 5 judges from List B (humanitarian law candidates) · Two-thirds majority of States Parties must be present and voting · The 18 candidates who obtain the highest number of votes are elected to the Court |
· Both the General Assembly and the UN Security Council hold their own independent election |
· DSU members appoint judges from the nominated list · Consensus vote |
· Elected by secret ballot by the States Parties to the Convention · There must be a two-thirds majority of the States Parties present and voting |
% of vote required |
18 candidates with the highest number of votes |
Absolute majority of votes in both elections |
Consensus vote required |
Candidates with the largest number of votes |