As early as 1920, the Advisory Committee of Jurists, tasked to negotiate a Statute for the envisaged Permanent Court of International Justice (PCIJ) (Article 14 Covenant of the League of Nations), considered the influence that terms of office might have on the independence of the international judiciary. Upon their recommendation, the Statute and Rules of the PCIJ provided in Article 13 that the ‘[t]he members of the Court shall be elected for nine years.’ In comparison with the (limited) precedents at that time, this nine-year period of office in the PCIJ seemed long (Central American Court of Justice (1907): five years; schemed International Prize Court (1907): six years).
This blog entry illustrates the ratio legis of Article 13 PCIJ-Statute as envisaged by the Committee and examines its implementation in the ICJ Statute. Although Article 13 ICJ Statute follows the wording of Article 13 PCIJ Statute and judges are elected for nine years, one important aspect differs. Whereas the judges of the PCIJ were elected all together every nine years, according to Article 13(1) ICJ Statute, elections to the ICJ are held every three years for one-third of the fifteen judges. This proposal (printed in the American Journal of International Law Volume 39 No. 1 Supplement: Official Documents (January 1946)) originated from the Informal Inter-Allied Committee on the Future of the PCIJ, which argued that a system under which all judges are elected simultaneously means ‘a complete break in the continuity and traditions of the Court’ (Ibid.). This entry concludes that the implementation of the Advisory Committee’s intentions for judicial independence, quality jurisprudence and continuity is nevertheless achieved in the ICJ today.
A period of nine years was agreed upon due to the considerations brought forward primarily by the Norwegian representative Hagerup elaborating that ‘(i)t is wished to make the judges irremovable in order to ensure their independence’. A comparably long term of office together with the (under normal circumstances) irremovability of judges during that time influences judicial independence positively (cf. Mackenzie ‘The Selection of International Judges’ in Romano et al (eds) The Oxford Handbook of International Adjudication (OUP 2014), 737, 753). The election of international judges is a political process and especially towards the end of their term, judges may tend to decide and vote in favour of those responsible for their re-election (Ibid.). Since the ICJ Statute still provides for nine years, this long term meets the goal of judicial independence since it limits the frequency of elections for a single judge and thereby reduces the period of ‘campaigning’.
The first measure to guarantee quality jurisprudence within the PCIJ was the rejection of a life mandate. The Committee feared that ‘incapacitated judges’ would stay in office. The jurists further argued that the Court, which was still to be established, would be in a ‘trial period’, in which ‘(i)t is advantageous not to have too long terms, at least not at the outset.’ This should ensure that the court and its work could be revised if it was not successful. As a second measure to ensure quality jurisprudence, the Committee stressed the importance of experience on the court and an esprit de corps. These objectives could – in the committee's view – only be achieved through a long period of office. The two measures favour high quality jurisprudence. Without doubt, the longer international judges are in office, the more experience they gain. This effect is enhanced in light of the original professions of judges at the ICJ, which tend to be academics or diplomats rather than (national) judges. Therefore, the term of nine years furthers the goal of quality since judges get the necessary time to settle down in their new position. In contrast, an esprit des corps might have been achieved by the terms of office in the PCIJ Statute. Due to triennial elections, however, a group spirit is hard to achieve (attenuated by the prospect of and high rate of re-elections).
In the course of its meetings, the Committee discussed the length of term of office together with inter alia the issue of the permanency of the Court. Hagerup argued that a long term of office strengthens the continuity of the Court. The Japanese representative Adatci confirmed that ‘a fairly long term of office’ ensures ‘the independence of judges and continuity of work’. Nine years and a reconstitution of the Court after that period were seen as ‘desirable’ to ensure the continuity of jurisprudence and to relieve the bench of inefficient members.
The Advisory Committee strove for continuity in the work of the Court. Although this goal is found in both institutions, the approaches of the PCIJ and ICJ are entirely different. Fitzmaurice claimed, in line with the Advisory Committee, that the ICJ triennial elections are counterproductive for continuity of judicial work since ‘the Court has hardly had time to strike roots with one membership’ (see Dugard, ‘Article 13’ in Zimmermann et al (eds), The Statute of the International Court of Justice, A Commentary (2nd edn, OUP 2012), para. 21). In contrast, ‘reconstruction’ of a whole bench (left aside re-elections) every nine years is more likely to lead to a complete break with jurisprudence. Triennial elections (together with the option to complete a case under Article 13(3) ICJ Statute) guarantee that a share of reasoning is brought to the partly new bench. Thus, the amendment of the PCIJ Statute towards the ICJ Statute achieves the Advisory Committee’s goal of continuity in the work of the Court.
The three goals, which the Advisory Committee of Jurists wanted to achieve with a nine-year period of office, judicial independence, quality jurisprudence and continuity are achieved in the ICJ today. Especially the triennial elections, which go back to the Informal Inter-Allied Committee on the Future of the PCIJ, guarantee permanency of the court and continuity in its jurisprudence.