The Nomination of International Judges by ‘the Enlightened Few’: A Comment on the Royal Decree of 23 January 2020 Concerning the Establishment of a Dutch National Group at the Permanent Court of Arbitration

Abstract

On 23 January 2020, the Government of the Netherlands adopted a Royal Decree concerning the Establishment of a Dutch National Group at the Permanent Court of Arbitration. The Decree aims to provide fairness, transparency and consistency in terms of the composition of the national group and its function of nominating candidates for election to international courts. This contribution puts the Dutch national group in context in the relevant international legal framework, analyses the specifics of the Decree and critically evaluates its strengths and weaknesses. It will be argued that while the Decree offers a number of welcome procedural specifications and innovations, it contains elements that deserve refinement and improvement in order to prevent that the Dutch national group acts (or is perceived to act) as a rubber stamp institution that simply carries out the will of the Government when making nominations for the international judiciary.

1 Introduction

On 23 January 2020, the Government of the Netherlands adopted a Royal Decree concerning the appointment of a national group at the Permanent Court of Arbitration (PCA Decree).¹ The PCA Decree aims to provide fairness, transparency and consistency in terms of the membership of the national group and its tasks of selecting candidate judges for election to various international courts.² These issues are of considerable importance in light of the requirement that international judges must act, and must be perceived to act, impartially and independently from the States over whose affairs they may pass judgment. This short contribution puts the Dutch national group in the context of the relevant international legal framework and analyses the specifics of the PCA Decree (Sect. 2), followed by an evaluation of its strengths and weaknesses (Sect. 3) and a conclusion (Sect. 4). It will be argued that while the PCA Decree offers a number of welcome procedural specifications and innovations, it contains elements that deserve refinement and improvement in order to prevent that the Dutch national group acts (or is perceived to act) as a rubber stamp institution that simply carries out the will of the Government when making nominations for the international judiciary.

2 The International Legal Framework of National Groups and the Details of the PCA Decree

Each member State to the 1899 and 1907 Hague Conventions must appoint up to four persons of known competency in questions of international law and available to act as arbitrators under the auspices of the PCA.³ These persons are appointed for a term of six years and may be reappointed without limitation as to the number of consecutive terms. A group of persons accordingly constituted by each PCA member State forms a so-called national group.

National groups do not only form a pool of individuals available to act as arbitrators when called upon. Over the years, they have been assigned additional responsibilities in the field of international law and dispute settlement. In particular, the Statute of the International Court of Justice (ICJ) provides that national groups may submit nominations for candidate judges, who are then up for election by the General Assembly and by the Security Council.⁴ National groups have an exclusive right to make these nominations and, subject to one (to date, still) theoretical exception,⁵ a candidate cannot be elected unless nominated by at least one such group.

The choice to give this competence to national groups stems from the institutional design of the Permanent Court of International Justice (PCIJ).⁶ When formulating plans for the establishment of the PCIJ, the Advisory Committee of Jurists successfully proposed that the choice of judges ‘should not be left entirely to the discretion of governments, but that […] the opinions of the enlightened few who are qualified to gauge the merits of persons to be selected for nomination, should have a great influence’.⁷ As observed later by the Informal Inter-Allied Committee in 1945, this system was meant to ‘diminish the intrusion of political considerations into the nomination of candidates [and] to spread the responsibility for the choice of a candidate amongst a great number of persons’.⁸ Accordingly, it was decided to bestow this responsibility on the independent national groups at the PCA, so as to separate the nomination process as much as possible from political influence or interference.

National groups may also nominate candidate judges for election to the International Criminal Court (ICC) if the relevant State party to the Rome Statute for the ICC chooses to make use of this option.⁹ The Netherlands has done this in the past and will do so in the upcoming elections.¹⁰

With the role of potential arbitrators gradually relegated to the background, the individuals in national groups are nowadays chosen more with a view to their function as members of a body nominating candidate judges at international courts.¹¹ This is also reflected in the PCA Decree, which is largely devoted to the composition of the national group in light of their function as a nominating body.

As for nominating candidate judges to the ICJ and the ICC, the PCA Decree offers a number of procedural specifications and innovations. First and foremost, the PCA Decree offers a list of individuals eligible for membership in the Dutch national group based on the exercise of certain predefined functions in the field of international law. Eligible are, in the order in which they are listed: (a) the Chair of the Advisory Committee on Issues of Public International Law (CAVV); the Dutch judge at (b) the European Court of Human Rights (ECHR), (c) the ICJ, (d) the ICC (or, if there is none, a member of the Dutch judiciary¹²), (e) the International Tribunal for the Law of the Sea (ITLOS); and (f) the Dutch member of the International Law Commission (ILC).¹³ These individuals are deemed to possess a broad and in-depth knowledge of international law, as well as wide international judicial and/or academic experience.¹⁴ While members were previously appointed by Royal Decree, they will now be appointed by the Minister acting alone.¹⁵

The mandate of the previous members of the Dutch national group expired on 22 April 2020. As from 23 April 2020, the newly constituted Dutch national group would have consisted of Professor Larissa van den Herik (CAVV Chair; University of Leiden), Judge Jolien Schukking (ECHR), Judge Martin Kuijer (Supreme Court of the Netherlands) and Judge Liesbeth Lijnzaad (ITLOS). However, these new members of the PCA have been appointed as of 1 July 2020,¹⁶ in order to prevent appointments in a period in which nominations are due. This created a brief period in which there was no Dutch national group at the PCA.

The PCA Decree not only outlines the composition of the Dutch national group. It also provides certain specifics on its working methods and procedures. For instance, the national group is to follow a ‘fair, transparent and consistent procedure’,¹⁷ such as objective decision-making and the publication of a recruitment profile with specific knowledge and experience requirements.¹⁸ Moreover, the group is explicitly called upon to take into account the relevant international regulations.¹⁹ Here one can think of rules governing the qualifications of candidate judges, the recommendation to consult with relevant judicial bodies and legal institutions,²⁰ and (for the ICC) the detailed rules of the mandatory system of minimum voting requirements.²¹ The PCA Decree also stipulates that the national group must refrain from nominating one of their own members as a candidate judge for the ICJ or ICC, unless the member in question already holds the judicial position, in which case (s)he would be eligible for re-election on one occasion.²² Finally yet importantly, the Decree envisages a regular exchange of information between the national group and the Ministry. More precisely, there will be a civil service advisor (ambtelijk adviseur) in the person of the head of the International Law Division of the Legal Affairs Department,²³ and the group ‘must consult with [the] Minister on supporting the nomination’ of a Dutch candidate judge for the ICJ or the ICC.²⁴

3 Evaluation

It has been bemoaned in the literature that the nomination process for the international judiciary is ‘highly politicized and lacks transparency’.²⁵ This is generally also the case for the composition and functioning of national groups.²⁶ Specific details and transparency concerning the membership and functioning of the Dutch group are thus in principle to be welcomed, given that a credible and open process for nominations and elections ‘is critical to having a strong and legitimate judiciary’.²⁷ However, there are some specific elements in the PCA Decree that deserve further reflection or perhaps even refinement and improvement. In what follows, comments are made in relation to aspects of the institutional design of the national group (Sect. 3.1) and its function as a nominating body (Sect. 3.2).

3.1 Institutional Aspects of the Dutch National Group

First of all, the PCA Decree is to be applauded because it unequivocally stipulates that members of the Dutch national group enjoy a full mandate of six years, even if in the meantime they cease to hold the position from which their eligibility originally derived.²⁸ The fact that this is noted here with such acclaim may come as a surprise, but a little known fact must be pointed out. It is accepted practice by the PCA International Bureau that even prior to the expiration of the six-year mandate, a PCA member State is free to withdraw or replace one or more members of its national group.²⁹ The International Bureau gives effect to this because there is no rule in the 1899/1907 Hague Conventions that explicitly excludes this. In the present author’s opinion, this is an unduly formalistic position,³⁰ and at least one national group has publicly criticized this practice on the ground that it allows abrupt changes ‘in order to promote or prevent the presentation of certain nominations’ for election.³¹

The PCA Decree introduces a standard that has to be met before someone can be taken off the list. It provides that any member of the Dutch national group may be suspended and dismissed by the Minister ‘on grounds of unsuitability, incompetence or for other compelling reasons’.³² This gives the members more security of mandate compared to national groups of States that lack a similar regulatory framework. Nevertheless, it would have been preferable to leave a decision on dismissal to the unanimous opinion of the other members rather than to the Minister in order to minimize the potential for undue interference with the group’s work as much as possible.³³

The considerations that are decisive for the selection of members of national groups are largely unknown.³⁴ It is positive to see that the PCA Decree has a predefined list of eligible members, which guarantees in a transparent manner the existence of a predictably composed Dutch group. This is quite a change from the situation that prevailed before, given that the members used to be appointed through informal procedures based on individual merit.³⁵ Moreover, a Dutch national group will exist as long as appointments are made on time.³⁶ Despite the call in the PCA’s constituent instrument, a large minority of PCA member States do not have a national group at all.³⁷ When these States (as well as States not party to the 1899/1907 Hague Conventions) put forward nominations for election to the ICC and/or the ICJ, they do so through ad hoc groups constituted for the particular occasion,³⁸ thereby exposing the process to a risk of direct governmental influence.

That said, one might question the wisdom of granting membership of the Dutch national group as the automatic result of exercising the functions as listed in the PCA Decree. Although a predefined list has merits in that it removes the absolute discretion—a wary observer could even say, arbitrariness—of appointing individuals who may be more inclined than others to echo the preferences of the Government, it may be questioned whether this particular list is the most ideal solution. To take a pertinent example, judges at the ECHR are expected to have a strong background in national law and/or human rights,³⁹ but there is no guarantee that they are by definition in the best position to gauge the merits of candidates who are to work in the field of public international law or international criminal law. The presence of the Dutch ECHR judge as a member of the national group is all the more surprising because the group is not given any role in the nomination of judges for the Strasbourg court. This is not to say, of course, that the persons who are eligible for membership of the Dutch national group are not competent with regard to the judicial or legal function they already exercise. However, it is an altogether different matter whether they are necessarily competent for the purpose of selecting candidates for election to the ICC and the ICJ.⁴⁰

A related critical comment that can be raised regarding the composition of the Dutch national group is that it draws heavily from the judiciary. Apart from the Chair of the CAVV and (should there be one⁴¹) the ILC member, all other members of the national group exercise judicial functions. The new design for the group essentially enables an improperly intimate process by which international judges nominate persons for election to become international judges and these elected judges, in turn, become members of the national group, and so on and so forth. There is little room for academics or practitioners. For instance, conspicuously absent from the list of eligible candidates is the external legal advisor of the Minister (extern volkenrechtelijk adviseur),⁴² a member of the Royal Netherlands Society of International Law (Koninklijke Nederlandse Vereniging voor Internationaal Recht),⁴³ or a Dutch member of the Institut de droit international.⁴⁴ The inclusion of one of them would provide not only additional subject-matter expertise in the area of public international law, it would also contribute to the national group acting (or being perceived to act) more independently. In short, the PCA Decree lacks balance in terms of professional background and contributes to maintaining the ‘old boys’ network’ to the detriment of potentially talented new blood.

By the way, the term ‘old boys’ network’ should not be taken too literally here. In fact, it is rather refreshing to see that the newly composed Dutch national group includes three women. Women are vastly underrepresented amongst the members of the PCA,⁴⁵ and in the international judiciary as a whole.⁴⁶ This is problematic, given that national groups with a mixed composition are likely to present a more balanced selection of candidates to the benefit of international courts.⁴⁷

3.2 Procedural Aspects: The Dutch National Group as a Nominating Body

3.2.1 The Nomination of Candidate Judges for Election to the International Court of Justice and the International Criminal Court

The general lack of independence of national groups from political influence and control is widely documented in the literature.⁴⁸ The process by which the newly composed Dutch national group is to put forward nominations is unfortunately not immune from such critique.

Arguably, the most troubling aspect of the PCA Decree relates to the actual or apparent governmental ‘steering’ of the Dutch group. One may wonder, for instance, if the members of the national group will still be able to meet and discuss amongst themselves without the presence of the civil service adviser from the Ministry even if, as the Explanatory Memorandum states, the adviser will not take part in the selection of candidates or their nomination. More importantly, though, the PCA Decree emphasises the need to maintain a continuous dialogue between the Ministry and the national group, stressing that the group is obliged to consult with the Minister before submitting the nomination of a Dutch candidate to the UN Secretary-General or to the President of the Assembly of States Parties to the Rome Statute. The instruction for the national group to consult with the Minister on supporting the nomination of a candidate is closely related to the declared strategy to have candidacies ‘in accordance with the government’s policy priorities […] viewed as whole’.⁴⁹

The Explanatory Memorandum describes the underlying process as follows. First, the Government will draw up a strategy for candidacies for international positions, aiming to have someone from the Netherlands on the ICJ, the ICC, the ITLOS, or the ILC (though not expecting to have more than one in these positions). This strategy, in turn, determines for which candidates the Government is prepared to campaign. Once the strategy is adopted, the group will be informed and the Government will make ‘detailed implementing arrangements in consultation with the national group’ to ensure that the envisaged candidate has a realistic prospect of being elected.⁵⁰

The message appears to be clear: the Government intends to commit the national group to its overall strategy concerning international judicial appointments, and once its envisaged candidate has taken the seat in one of the four institutions, it would ‘not [be] necessary for the national group to recruit, select and, where appropriate, nominate a candidate’ for other elections.⁵¹ This appears to subdue the Dutch group to the express or implied will of the Government. It also downplays their relevance in submitting (co-)nominations of candidates of other nationalities, which is a very minimalist conception of the constitutional duty for the Government to promote the development of the international legal order.⁵²

3.2.2 Residual Powers of Nomination in Respect of the International Tribunal for the Law of the Sea, the International Law Commission, and the Nobel Peace Prize

The PCA Decree further provides that upon request by the Minister, the national group shall submit a nomination of a candidate for election to the ITLOS or the ILC.⁵³ This involvement with respect to institutions other than the ICJ and the ICC is to be commended. As observed by the Institut de droit international during its 2011 session, the practice of these groups ‘playing a role in the selection of candidates to other international courts and tribunals […] deserves to be applied more broadly’.⁵⁴ Here, the role of the national group is confined to the domestic sphere. Thus, even though the national group may be invited by the Minister to recruit and select a (presumably Dutch) candidate, the Minister remains ultimately responsible for submitting the nomination on behalf of the Netherlands.⁵⁵ The Explanatory Memorandum does not unequivocally state that the Minister is bound to submit (at the international level) the same candidate as originally proposed by the group (at the domestic level), but as a matter of good faith and collegiality one could expect that the Minister would follow up on the nomination after requesting it in the first place.

Finally, on account of their membership of an international ‘court’, each individual member of the PCA national groups is entitled to nominate candidates for the Nobel Peace Prize.⁵⁶ For reasons unexplained, the PCA Decree assigns this prerogative to the group as a whole, rather than to its individual members.⁵⁷ This is an unjustified restriction by domestic law of a privilege granted by a foreign body, the Norwegian Nobel Committee (a committee set up by the Norwegian Parliament). Accordingly, the members of the Dutch group are advised to pay no heed to it, all the more because the PCA Decree also stipulates that it must take into account in its activities international regulations currently in force. The Norwegian Nobel Institute adopts the position that ‘since the Norwegian Nobel Committee writes its own statutes, which are thereupon sanctioned by the Nobel Foundation in Stockholm, the right for individual PCA members to make nominations will not be altered by any changes in the official laws and regulations of [any] State’.⁵⁸ Ideally, the PCA Decree should be amended to bring it into line with paragraph 3 of the Nobel Peace Prize Regulations.

4 Conclusion

The work of the men and women who nominate candidates for election to international courts and tribunals is of paramount importance. They are the gatekeepers of the whole process. In the whole chain of selecting judges, the choice of nominees at the national level is ‘the most crucial link […] and it is potentially the weakest, since it depends on the competence and integrity of the government’.⁵⁹ Thus, in light of their function as a nominating body, the composition and procedures governing the activities of national groups do matter.

Now, how to draw a balance after all that is said and done? It is admittedly not very easy to assess the net gains or losses brought by the new Royal Decree. Nevertheless, an attempt can be made, taking as a point of departure the original idea behind the institution of national groups, namely separating the process of nominating candidates for the international judiciary as much as possible from political considerations that might range from subtle influence to outright interference. At the same time, it is apparent that the decision to depoliticize the process of elections by giving the power of nomination to an expert body has in turn subjected to politics the question as to who should be in this body in the first place.

The Netherlands is now one of the few countries where the composition and functioning of the national group is laid down in an accessible framework in the form of domestic legislation. This is a positive development. The provision that calls upon the national group to work in a fair, transparent and consistent procedure is certainly an improvement as well, as is the possible involvement of the national group in the selection of ITLOS judges and ILC members. Yet, it appears as if transparency and possibly an extended mandate has been gained at the cost of independence.

It is a matter of realpolitik that no candidate is ever likely to be successfully elected without the support of his or her Government. The campaign that is necessary to drive a candidate to the finish line is costly, time-consuming and often involves informal bartering with other Governments.⁶⁰ As noted by Shabtai Rosenne, informal consultations between the Government and the national group are ‘by no means undesirable, and [help] the smooth completion of the election process’.⁶¹ A nomination process that lacks any consultation with the Government could result in having no international judicial posts for the Netherlands, as the members of the national group may not necessarily know which individual would have a chance of succeeding at the diplomatic level in the General Assembly and the Security Council.

However, informal consultation is one thing; it is an altogether different matter to assert that the Dutch national group has an ‘autonomous power to nominate candidates’,⁶² and in the same breath to impose consultations as a matter of obligation in order to obtain the ‘right’ Dutch candidate who fits in the overall Governmental strategy concerning the international judiciary, in terms of the persons concerned as well as the positions that the Netherlands aims for. The Government does not have a monopoly on the wisdom to come up with qualified candidates who might be elected successfully. Surely, there must be a middle ground between complete non-intervention by the Government and the presentation by the Ministry of a fait accompli if the national group wants to nominate a candidate who is to enjoy any Government support at all. The latter, as outlined in the PCA Decree, is quite a far cry from what the original drafters of the PCIJ/ICJ Statute had in mind when assigning responsibilities to the independent ‘enlightened few’ in the PCA.

In the published version of his inaugural lecture, Professor Philippe Sands recounts how in 1945 the British national group played a limited role in the nomination of Arnold McNair (who was elected to the ICJ in the year that followed). The process was mostly driven by the Foreign Office, especially the Legal Adviser of the time, Sir Eric Becket. Becket was very well aware of the delicacy of the whole process: ‘We must […] be very careful not to appear to be overriding the prerogative which belongs to [the national group], otherwise we may find that one of them begins to raise objections.’⁶³ With the new PCA Decree, it can only be hoped that the Minister will not be too overriding and instrumentalise the Dutch national group to a breaking point concerning its independence.

Appendix

Decree of 23 January 2020, no. 2020000099, appointing a national group in the Permanent Court of Arbitration (Appointment of a National Group (Permanent Court of Arbitration) Decree)

We, Willem-Alexander, by the grace of God King of the Netherlands, Prince of Orange-Nassau, etc., etc., etc.

On the recommendation of Our Minister of Foreign Affairs, no. Min-Buza.2019.4726-10, of 13 January 2020;

Having regard to article 23 of the Convention for the Pacific Settlement of International Disputes done at The Hague on 29 July 1899 (Bulletin of Acts and Decrees 1900, no. 163 and Dutch Treaty Series 1963, no. 157);

Having regard to article 44 of the Convention for the Pacific Settlement of International Disputes done at The Hague on 18 October 1907 (Bulletin of Acts and Decrees 1910, no. 73 and Dutch Treaty Series 1963, no. 158);

Having regard to article 4, paragraph 1 of the Statute of the International Court of Justice done at San Francisco on 26 June 1945 (Dutch Treaty Series 1971, no. 55) (‘ICJ Statute’);

Having regard to article 36, paragraph 4 of the Rome Statute of the International Criminal Court done at Rome on 17 July 1998 (Dutch Treaty Series 1999, no. 13) (‘Rome Statute’);

Having regard to paragraph 3 of the Special Regulations for the award of the Nobel Peace Prize and the Norwegian Nobel Institute;

Decree:

Article 1

For the purposes of this Decree:

Our Minister means Our Minister of Foreign Affairs;

National Group means the National Group in the Permanent Court of Arbitration referred to in article 2.

Article 2

There is a National Group in the Permanent Court of Arbitration.

Article 3

• 1. The National Group comprises no more than four members. The following are eligible for membership in the order in which they are listed:

  • a. the chair of the Advisory Committee on Issues of Public International Law;

  • b. the judge on the European Court of Human Rights who is a Dutch national and who was elected on the basis of a nomination by the Netherlands;

  • c. any judge on the International Court of Justice who is a Dutch national and was elected on the basis of a nomination by the Netherlands;

  • d. any judge on the International Criminal Court who is a Dutch national and was elected on the basis of a nomination by the Netherlands or, failing such a candidate, a member of the judiciary;

  • e. any judge of the International Tribunal for the Law of the Sea who is a Dutch national and was elected on the basis of a nomination by the Netherlands;

  • f. any member of the United Nations International Law Commission who is a Dutch national and was elected on the basis of a nomination by the Netherlands.

• 2. Members of the National Group are appointed by Our Minister for six years. Termination of a position referred to in paragraph 1 pending membership of the National Group does not entail termination of membership of the National Group.

• 3. The head of the International Law Division of the Ministry of Foreign Affairs acts as civil service adviser to the National Group.

• 4. Members of the National Group may tender their resignation to Our Minister. They may also be suspended or dismissed by Our Minister on grounds of unsuitability or incompetence or for other compelling reasons.

Article 4

• 1. Members of the National Group are members of the Permanent Court of Arbitration and may be called upon to act as arbitrators for the purposes of settling disputes between states pursuant to the Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907.

• 2. The National Group may, through Our Minister, submit to:

  • a. the UN Secretary-General nominations of candidates for election to the International Court of Justice;

  • b. the President of the Assembly of States Parties to the Rome Statute nominations of candidates for election to the International Criminal Court.

• 3. The National Group may submit nominations of candidates for the Nobel Peace Prize to the Norwegian Nobel Committee.

Article 5

At the request of Our Minister, the National Group must submit to Our Minister a nomination of a candidate for election to:

• a. the International Tribunal for the Law of the Sea;

• b. the United Nations International Law Commission.

Article 6

• 1. The National Group must consult with our Minister on supporting the nomination of a candidate possessing Dutch nationality for election to the International Court of Justice. The National Group must nominate no more than four candidates for every election to the International Court of Justice, of whom no more than two possess Dutch nationality. The number of candidates nominated by the National Group must not exceed twice the number of seats to be filled.

• 2. The National Group must consult with our Minister on supporting the nomination of a candidate possessing Dutch nationality for election to the International Criminal Court. For every election to the International Criminal Court, the National Group must nominate no more than one candidate who is a national of a State Party to the Rome Statute.

Article 7

• 1. The National Group must follow a fair, transparent and consistent procedure in selecting a candidate for nomination as referred to in article 4, paragraph 2 or article 5.

• 2. The National Group must refrain from selecting its own members for the positions referred to in article 4, paragraph 2 or article 5, except where members holding one of these positions are eligible for re-election once.

Article 8

The National Group must take into account in its activities international regulations currently in force.

Article 9

Our Minister must make provision for the secretariat of the National Group.

Article 10

Royal Decrees issued prior to the entry into force of this Decree that appoint persons to perform the activities referred to in article 4 are regarded as appointment Decrees pursuant to this Decree in cases where the person’s term of office has not yet expired.

Article 11

This Decree may be cited as the Appointment of a National Group (Permanent Court of Arbitration) Decree.

Article 12

This Decree enters into force on the day after the date of publication of the Government Gazette in which it appears.

Our Minister of Foreign Affairs is responsible for implementing this Decree, which will be published in the Government Gazette with the explanatory memorandum.

The Hague, 23 January 2020,

Willem-Alexander

S.A. Blok

Minister of Foreign Affairs

1.1 Explanatory memorandum

Introduction

The Convention for the Pacific Settlement of International Disputes done at The Hague on 29 July 1899 (Bulletin of Acts and Decrees 1900, no. 163 and Dutch Treaty Series 1963, no. 157) (‘the 1899 Convention’) and the Convention for the Pacific Settlement of International Disputes done at The Hague on 18 October 1907 (Bulletin of Acts and Decrees 1910, no. 73 and Dutch Treaty Series 1963, no. 158) (‘the 1907 Convention’) provide for the establishment of the Permanent Court of Arbitration (PCA): the first permanent international mechanism for the peaceful settlement of disputes between states. In accordance with article 23 of the 1899 Convention and article 44 of the 1907 Convention, every party to the Conventions designates no more than four persons as members of the PCA. They form that state party’s National Group.

Membership of the PCA (and hence of the National Groups) is open to those who possess both a broad, in-depth knowledge of international law and very wide international judicial and/or academic experience. Members are appointed for a term of six years. Members of the PCA should be available to act as arbitrators in the settlement of disputes between states. In addition, the National Groups are charged with tasks under various instruments, in particular with nominating candidates, on behalf of states, for election as members of the International Court of Justice (ICJ) and the International Criminal Court (ICC).

This Decree is based on three considerations, aimed at regulating the membership and tasks of the Dutch National Group (‘the National Group’) in more detail. First, the government wishes to involve the National Group in the recruitment and selection of candidates who can be nominated by the Netherlands for positions other than the international judicial positions referred to above. This is in accordance with the government’s policy of arranging for the recruitment, selection and nomination of candidates to be carried out by independent persons by means of a fair, transparent and consistent process. Second, the Decree regulates the membership of the National Group. Lastly, it provides for further rules governing the National Group’s performance of its tasks.

Tasks of the National Group

Originally, members of the PCA had to be available only to act as arbitrators in the settlement of disputes between states. A number of additional tasks were later added to the responsibilities of PCA members in the context of the National Groups.

On 27 November 1895, Dr Alfred Bernhard Nobel drew up his will, under which the Norwegian Nobel Committee awards the Nobel Peace Prize to persons who have ‘done the most or best to advance fellowship among nations, the abolition or reduction of standing armies, and the establishment and promotion of peace congresses’. This accords with the aim of the 1899 Convention: to ensure that disputes between peoples are settled not by force or superior power but by law [fn: Proceedings of the House of Representatives of the States General, Annexes 1899–1900, no. 140.3, pp. 12–13.]. The power of National Groups to nominate candidates for the Nobel Peace Prize is based on paragraph 3 of the Special Regulations for the award of the Nobel Peace Prize of 10 April 1905.

In addition to the power of National Groups to nominate candidates for the Nobel Peace Prize, article 4 of the Statute of the Permanent Court of International Justice done at Geneva on 16 December 1920 (Bulletin of Acts and Decrees 1921, no. 1049) assigned National Groups the power to nominate candidates for election to the Permanent Court of International Justice, the judicial organ of the League of Nations. When the Permanent Court of International Justice was succeeded by the ICJ, the judicial organ of the United Nations, the power to nominate candidates for election to the ICJ was similarly vested in National Groups: see article 4 of the Statute of the International Court of Justice done at San Francisco on 26 June 1945 (Dutch Treaty Series 1971, no. 55). Echoing this provision, article 36, paragraph 4 of the Rome Statute of the International Criminal Court done at Rome on 17 July 1998 (Dutch Treaty Series 1999, no. 13) enables states parties to make National Groups responsible for nominating candidates for election to the ICC. This is what the Kingdom of the Netherlands has decided to do.

Nominations by the Netherlands for the international judicial positions governed by this Decree include nominations by the National Group (for the ICJ and the ICC) and nominations by the Minister of Foreign Affairs (see below). Article 4 of the Decree sets out the powers vested in the National Group pursuant to the instruments referred to above. The National Group has autonomous powers to nominate candidates on behalf of the Netherlands for election to the ICJ or the ICC. However, such nominations do not oblige the government to campaign or to vote for the candidate thus nominated. The situation is different if the government has notified the National Group, prior to the nomination, of its willingness to campaign for the election of a candidate nominated by the National Group.

The government wishes to involve the National Group not just in the tasks listed above, but also in the recruitment and selection of candidates who can be nominated by the Netherlands for posts other than the international judicial positions referred to in article 4. The positions in question are listed in article 5 of this Decree. Unlike the recruitment, selection and nomination of candidates for the ICJ and the ICC, which are carried out by the National Group at the request of the UN Secretary-General or the President of the Assembly of States Parties to the Rome Statute respectively, recruitment and selection for the positions referred to in article 5 are carried out at the request of the Minister of Foreign Affairs, who is subsequently responsible for nominating candidates for the positions referred to in article 5.

Strategy for candidacies

There is a difference between candidacies where a state is the candidate and those where a state nominates an individual as a candidate. In the first case, the Kingdom of the Netherlands is the candidate and after election takes its seat in the body in question. Here the Kingdom’s representative acts on instructions from the government; this applies, for example, to membership of the UN Security Council. In the second case, an individual is nominated by a state but nevertheless, once elected, discharges the duties of the position in a personal capacity and in an independent and impartial manner, without instructions from the state. The candidacies governed by this Decree belong to the second category.

Dutch candidacies, including those for the ICJ and the ICC, should be in accordance with the government’s policy priorities and should be viewed as a whole. To this end the government will adopt a strategy for candidacies, indicating the organs or positions in which the government believes that it is important for the Netherlands or a candidate nominated by the Netherlands to sit. To ensure that the candidate nominated has a realistic chance of being elected, the government will need to campaign on behalf of and reach agreement with other states on support for the Dutch candidate. Once the strategy has been adopted, the government will make more detailed implementing arrangements in consultation with the National Group.

The strategy will indicate which candidacies the government is prepared to campaign for. The National Group will be informed of the strategy after it is adopted, to allow sufficient time for it to recruit, select and, where applicable, nominate candidates. This will not apply if the government has decided that the Kingdom should stand for one of the non-permanent seats on the UN Security Council. A candidacy of this kind will take priority over campaigning for other candidacies; in principle all other campaigns will be suspended for three or four years before the election to the Security Council.

Given The Hague’s status as the legal capital of the world, there should always be a nominee of the Netherlands on (1) the ICJ, (2) the ICC, (3) the International Tribunal for the Law of the Sea (ITLOS) or (4) the UN International Law Commission (ILC). It is therefore not necessary for the National Group to recruit, select and, where appropriate, nominate a candidate for every election to the positions referred to in articles 4 and 5.

Membership of the National Group

Until the entry into force of this Decree, members of the National Group were selected informally and were then appointed by royal decree. The Ministry of Foreign Affairs then informed the Secretary-General of the PCA of the appointments. This Decree provides for membership of the National Group to be determined in an objective, transparent and consistent way. Individuals are eligible for membership on the basis of posts they hold or have held. In view of the nature of these posts, such individuals are deemed to possess both a broad, in-depth knowledge of international law and very wide international judicial and/or academic experience. Under this Decree it will only be necessary to follow a procedure to select a member of the National Group from the ranks of the judiciary as the occasion arises, thereby ensuring that the National Group possesses knowledge and experience in the field of international criminal law. The Council for the Judiciary will be involved in the selection of a member of the judiciary to serve in the National Group. The importance of diversity will be taken into account in the recruitment and selection of persons for the posts which render their holders eligible for membership of the National Group. This will ensure diversity in the membership of the National Group.

Article 3 of the Decree lists the eight individuals who are successively eligible for membership of the National Group. However, it will not always be the case that a Dutch national, elected on the basis of nomination by the Netherlands, is a member of the ICJ, the ICC, ITLOS or the ILC. As noted above, the government aims to ensure that one of these positions is always held by a person nominated by the Netherlands. It is unlikely that more than one of these positions will be held at the same time by Dutch nominees. The members of the National Group may complete the full six-year term of their appointment even if, by the end of that term, they no longer hold the post from which they derived such membership.

The Head of the International Law Division of the Legal Affairs Department of the Ministry of Foreign Affairs is the civil service adviser to the National Group. The civil service adviser will not be involved in the selection of candidates for the nominations governed by this Decree. The National Group’s secretariat will be provided by the International Law Division of the Ministry of Foreign Affairs.

Performance of tasks by the National Group

The National Group should take account of the applicable international regulations and those laid down by this Decree in the performance of its tasks.

The main points of the international regulations governing the recruitment, selection and nomination of candidates for the positions in question concern the qualifications of candidates, the number of candidates to be nominated, their nationality, the need for timely consultation with relevant judicial bodies and knowledge institutions, and requirements concerning the nomination. These international regulations may be found in articles 2 to 6 of the ICJ Statute, articles 36 and 37 of the Rome Statute, articles 2 to 4 of the Statute of the International Tribunal for the Law of the Sea, and articles 2 to 8 of the Statute of the UN International Law Commission. Depending on the position in question, relevant judicial bodies and knowledge institutions in the Netherlands include in any event the Council for the Judiciary, the Advisory Committee on Issues of Public International Law, and the Netherlands Institute for Human Rights.

This Decree provides for more detailed rules for the National Group’s performance of its tasks. The Group is expected to employ a fair, transparent and consistent procedure when recruiting and selecting candidates for the positions in question and to ensure that candidates are selected on the basis of an objective assessment of their knowledge and experience. The procedure should in any event involve the publication of a recruitment profile with specific requirements that candidates should meet in terms of knowledge and experience.

To date, the National Group has employed an informal procedure in making nominations, allowing its members to put themselves forward for nomination. The Decree will make this impossible, except where members holding a position governed by this Decree are eligible for re-election once. The new procedure accords with the government’s goal of restricting appointments of individuals to international positions to two terms of office at most.

To implement the strategy referred to above, the Ministry of Foreign Affairs and the National Group will hold regular consultations on the recruitment, selection and nomination of candidates for the international judicial positions covered by this Decree. As stated above, the National Group has autonomous powers to nominate candidates for election to the ICJ or the ICC, but the government is not obliged to campaign or vote for such candidates. Article 6 of the Decree therefore states that the National Group must consult the Minister of Foreign Affairs before nominating a Dutch national as a candidate for the ICJ or the ICC. This requirement does not apply to the nomination of candidates for the Nobel Peace Prize or to the National Group’s powers in relation to co-nomination.

In conclusion, it should be noted that communication between the UN Secretary-General and the National Group or its members, and between the President of the Assembly of States Parties to the Rome Statute and the National Group should take place through diplomatic channels to ensure that a nomination genuinely comes from the National Group.

S.A. Blok

Minister of Foreign Affairs