Ruth MacKenzie

Selecting international judges: principle, process, and politics

© Ruth Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands, 2010. All rights reserved. This book examines the way international court judges are chosen. Focusing principally on the judicial selection procedures of the International Court of Justice and International Criminal Court, it provides a detailed examination of how the selection process works in practice at national and international levels: What factors determine whether a state will nominate a candidate? How is a candidate identified? What factors influence success or failure? What are the respective roles of merit, politics, and other considerations in the nomination and election process? The research was based on interviews, case studies, and survey data in a range of different states. The book concludes that although the nature and quality of nomination and election processes vary widely, a common theme indicates the powerful influence of domestic and international political considerations, and the significant role of a small group of diplomats, civil servants, lawyers, and academics, often without transparency or accountability. The processes allow overt political considerations to be introduced throughout the decision-making process in ways that may detract from the selection of the most highly qualified candidates and, ultimately, undermine independence. This is particularly evident in the election campaigning that has become a defining feature of the selection process, accompanied by widespread vote trading and reciprocal agreements between states. The effect of these practices is often to undermine the role of statutory selection criteria and to favour candidates from more politically powerful states. The book reviews new judicial selection models adopted or proposed in other international and regional courts, and considers a number of proposals for change to promote more independent, transparent, and merit-based nomination and election procedures.

The Burgh House Principles on the Independence of the International Judiciary

Considering the following principles of international law to be of general application: to ensure the independence of the judiciary, judges must enjoy independence from the parties to cases before them, their own states of nationality or residence, the host countries in which they serve, and the international organisations under the auspices of which the court or tribunal is established; judges must be free from undue influence from any source; judges shall decide cases impartially, on the basis of the facts of the case and the applicable law; judges shall avoid any conflict of interest, as well as being placed in a situation which might reasonably be perceived as giving rise to any conflict of interests; judges shall refrain from impropriety in their judicial and related activities;

Principles of International Environmental Law: General principles and rules

INTRODUCTION This chapter describes the general principles and rules of international environmental law as reflected in treaties, binding acts of international organisations, state practice, and soft law commitments. The existence and applicability of ‘principles of international environmental law’ were confirmed by the arbitral tribunal in the Iron Rhine case. Such principles are general in the sense that they are potentially applicable to all members of the international community across the range of activities that they carry out or authorise and in respect of the protection of all aspects of the environment. From the large body of international agreements and other acts it is possible to discern general rules and principles that have broad, if not necessarily universal, support and are frequently endorsed in practice. These are: (1) the obligation reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, namely, that states have sovereignty over their natural resources and the responsibility not to cause transboundary environmental damage; (2) the principle of preventive action; (3) the principle of co-operation; (4) the principle of sustainable development; (5) the precautionary principle; (6) the polluter pays principle; and (7) the principle of common but differentiated responsibility. In the absence of clear judicial authority, and in view of the conflicting interpretations under state practice, it is frequently difficult to establish the parameters or the precise international legal status of each general principle or rule. The application of each principle in relation to a particular activity or incident, and its consequences, must be considered on the facts and circumstances of each case, having regard to several factors, including: the source of the principle; its textual content and language; the particular activity at issue; the environmental and other consequences of the activity; and the circumstances in which it occurs (including the actors and the geographical region). Some general principles or rules reflect customary law, others may reflect emerging legal obligations, and yet others might have a less developed legal status. In each case, however, the principle or rule has broad support and is reflected in extensive state practice through repetitive use or reference in an international legal context.

Principles of International Environmental Law: Oceans, seas and marine living resources

INTRODUCTION Oceans cover about 70 per cent of the Earths surface, accounting for most of the Earths water and making up more than 97 per cent of the biosphere. The oceans nurture life and shape the planets weather and climate. They create more than half of our oxygen and provide vital sources of protein, energy and minerals. As described by some, ‘Earth is a marine habitat’. The oceans provide food for a billion people, and are also a source of income and livelihood for millions. The FAO estimates that about 540 million people are employed in capture fisheries and in related secondary activities. But oceans are experiencing serious environmental challenges, many of which have unknown consequences. In 1990, a report by the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) on the ‘State of the Marine Environment’ highlighted coastal pollution as the principal threat to the marine environment. In 2001, the same group of experts, while recognising that land-based activities continued to be the principal source of pollution, acknowledged that pollution is not the only, or even the most severe, threat to the oceans, and that direct physical damage to ecosystems and habitats and over-exploitation of the resources ‘have even greater worldwide effects’. GESAMP considered that the emergence of new issues, such as global warming, ‘placed the protection of the seas in a new perspective’.

The environment and international society: issues, concepts and definitions

INTRODUCTION: THE ENVIRONMENTAL CHALLENGE It is widely recognised that the planet faces serious environmental challenges that can only be addressed through international cooperation. Climate change and ozone depletion, loss of biodiversity, toxic and hazardous pollution of air and sea, pollution of rivers and depletion of freshwater resources are among the issues that international law is called upon to address. Since the mid 1980s, the subject of international environmental law has emerged as a discrete field of public international law, although one that is closely related to many other areas. The conditions that have contributed to the emergence of international environmental law are easily identified: environmental threats are accompanied by a recognition that ecological interdependence does not respect national boundaries and that issues once considered to be matters of national concern have international implications – at the bilateral, subregional, regional or global levels – that can often only be addressed by international cooperation, including by law and regulation. The growing number of international environmental issues is evidenced by the large body of principles and rules of international environmental law that apply bilaterally, regionally and globally, and reflects international interdependence in a ‘globalised’ world. Progress in developing international legal control of activities has been gradual and piecemeal, and too reactive to particular incidents or the availability of new scientific evidence (such as the Chernobyl accident or the discovery of the ‘hole’ in the ozone layer). It was not until the late nineteenth century that communities and states began to recognise the transboundary consequences of activities affecting shared rivers or leading to the destruction of wildlife, such as fur seals, in areas beyond national jurisdiction. In the 1930s, the transboundary consequences of air pollution were acknowledged in the litigation leading to the award of the arbitral tribunal in the Trail Smelter case. In the 1950s, the international community legislated on international oil pollution of the oceans. By the 1970s, the regional consequences of pollution and the destruction of flora and fauna were obvious, and by the late 1980s global environmental threats had become a part of the international communitys agenda as scientific evidence identified the potential consequences of ozone depletion, climate change and loss of biodiversity.