Breaking News: Thomas Buergenthal Will Step Down from ICJ

Judge Thomas Buergenthal

Sure, some guy named John Paul Stevens is retiring from the U.S. Supreme Court, but there is another big judicial resignation this spring to note. Thomas Buergenthal, the U.S. member of the International Court of Justice, has announced that he will not finish out his term on the court. I am breaking some news here because the I.C.J. has not formally acknowledged his pending resignation. Nor have I seen any news reports about it. But I am informed by a very reliable source that Judge Buergenthal is stepping down early (his term expires in 2015) and that, indeed, the search for his successor is well underway. (I’m sure many readers of this blog knew about this way before I did).

I will leave for another day, and to more knowledgeable folks, the evaluations of Judge Buergenthal’s service on the ICJ. Let me get down to what we are all really interested in: who will be his replacement?

Technically, there is no U.S. seat on the I.C.J., nor does the U.S. government play a formal role in the nomination of members of the I.C.J. But through complex machinations (and long tradition), each permanent member of the Security Council always gets a judge on the Court. Hence, there is always a U.S. judge (Some background from the 2006 selections here).

So how will the U.S. judge be chosen? Well, it’s not exactly a transparent process. There is something called the U.S. National Group, which by tradition is chaired by the State Department’s Legal Advisor and often composed of previous Legal Advisors. That Group is instructed, by the ICJ’s Statute, to “consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law” for recommendations on whom to nominate.

I don’t know whether the National Group actually asks the U.S. Supreme Court for advice although, I bet it does. And I don’t know whether they ask all 183 U.S. law faculties. I doubt they do, because that would probably be a waste of time. I do know that they consult the American Society of International Law, and that the U.S. judge is almost always a very active and devoted member of ASIL. So I imagine that ASIL’s influence is quite strong. Still, the key group here is the National Group. I think that they are the real decisionmaker.

Here is the ICJ Statute’s standards for members of the Court. They should be “persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.” I know the National Group is still soliciting input on the nomination (at least until next week).

It’s true that, shockingly, the ICJ Statute does not require National Groups to consult “leading international law weblogs”. But never underestimate the power of the Internet. There is a good chance that at least one member of the U.S. National Group will read this post and the comments to it. (I can’t guarantee that person will actually take this post or comments seriously, but who knows?) So please refrain from snarky comments, and use the comments here to propose serious candidates for the Court (For example, Michael Reisman is a serious candidate. Diane Wood is a serious candidate, but I hear she has some other job in mind. Julian Ku? Not so much.). At the same time, it would be useful to think outside the box.  Please keep any comments to less than 100 words.

Nominate away!