By Tobias Thienel

A short 47 years, 2 months and 29 days after giving its first ever judgment (Lawless v. Ireland (No. 1)), the European Court of Human Rights has today rendered its first advisory opinion: Advisory Opinion on Certain Legal Questions concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights. The question for the Court was only slightly more catchy than the title of the opinion: ‘can a list of candidates for the post of judge at the European Court of Human Rights, which satisfies the criteria listed in Article 21 of the Convention, be refused solely on the basis of gender-related issues?’ In other words, can the equal representation of the genders on the Court be enforced by a refusal to consider nominations that do not contain any women (the gender presently underrepresented), and that accordingly do not afford an opportunity to remedy the situation? The background is in the division of roles in the election of judges to the Court: of course, every State party to the Convention gets its own judge at Strasbourg. In the ordinary course of events, if a vacancy arises on the Court after one judge’s term of office comes to an end or he or she leaves office, the State party in respect of which the judge was elected gets to nominate three candidates. All candidates must be ‘of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence’ (Article 21(1) ECHR). The Parliamentary Assembly of the Council of Europe (Articles 22 et seq. of the Statute of the Council of Europe) then elects the judge from the three candidates (Article 22(1) ECHR). In discharging its duties in this respect, the Parliamentary Assembly has fairly recently decided not to consider lists of candidates where the nominees do not meet the requirements of Article 21 or do not have a sufficient knowledge of either of the Court’s working languages, but also where the list does not contain at least one female nominee: para. 3 of Resolution 1366 (2004), as amended by para. 5 of Resolution 1426 (2005). The question before the Court (sitting as a Grand Chamber, under Article 31(b) ECHR) therefore was whether this last criterion imposed by the Parliamentary Assembly was permissible. [Under the substantive human rights law of the Convention, such positive discrimination, i.e. the preference of members of one group over another in order to remove factual inequalities (which preference the policy of the Parliamentary Assembly had a potential to cause), seems to be permissible as a form of discrimination against the parties disadvantaged by it (Buckley v. United Kingdom, Dissenting Opinion of Judge Pettiti; Stec and Others v. United Kingdom, paras. 51, 61 et seq.), but not compulsory by virtue of any right to be preferred enjoyed by the presently disadvantaged group (see D.H. and Others v. The Czech Republic, Concurring Opinion of Judge Costa, para. 7). None of this concerned the Grand Chamber in today’s Advisory Opinion.] I propose to begin with a few remarks on the advisory procedure (apologies for being boring). First off, the Press Release announcing that the Court was about to give, or had just given, its first ever Advisory Opinion may have surprised some: this was not the first occasion that the advisory procedure has been used, in the sense of a request being made to the Court. A previous request to the Court, on the relationship between the ECHR and the ‘Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States’ had been made on 9 January 2002. However, the Court then held that the request was not within its advisory competence under Article 47 ECHR, and did so not in a document entitled ‘Advisory Opinion’, but in a ‘Decision’: Decision on the Competence of the Court to Give an Advisory Opinion (note that the ICJ uses ‘Advisory Opinions’ to deny requests for such opinions: Legality of the Use by a State of Nuclear Weapons in Armed Conflict). Today’s Advisory Opinion therefore really was a first for the Court. Secondly, the Grand Chamber has briefly indicated (at para. 39 of the Opinion) that it ‘considere[d] it appropriate’ to give the requested Opinion. There was no explanation as to why the ‘appropriateness’ of giving the Opinion mattered at all, but it seems the Grand Chamber has followed the ICJ’s interpretation of the power to give Advisory Opinions. Article 47(1) ECHR, like Article 65 of the ICJ Statute, says that the Court ‘may‘ give an Opinion. This means, in the settled law of the ICJ and now in the view of the ECtHR as well, that the Court has a certain discretion on whether to give the Opinion or not (see Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, ICJ Reports 1950, pp. 65, 71-2). Now, on to the substance of today’s Opinion. The Grand Chamber first observed that the role of the Parliamentary Assembly in electing the judges of the Court brought with it ‘both obligations and prerogatives’ (para. 43). ‘[T]he Parliamentary Assembly is bound first and foremost by Article 21(1)’ (para. 44). This was not a problem in respect of some of the criteria laid down by the Parliamentary Assembly, such as the requirement that the candidates should speak at least one of the working languages of the Court. This and other requirements could be seen as elaborating on the conditions for judicial office emanating from Article 21(1) ECHR. The same, however, could not be said of the requirement that the lists of nominees should allow for a fair representation of the genders on the Strasbourg Bench (paras. 45-8). The Grand Chamber further noted that the aims of the Assembly’s gender-equality policy were important and shared by all. Nonetheless, the Grand Chamber also observed, as had the Committee of Ministers on an earlier occasion, that there could be situations in which the need to nominate at least one member of the gender underrepresented on the Bench (i.e., for the foreseeable future, one or more women), had a potential to create problems. Especially very small States could, for instance, have trouble nominating two men and one woman, or more women in the group of three nominees, who all satisfied the requirements of Article 21(1). That possibility may be fairly remote, but could not be entirely excluded. In such a case, Article 21(1) would prevent gender-balanced lists containing nominees who are not sufficiently qualified. The article of the Convention would therefore trump, and render unlawful, the selection criterion chosen by the Parliamentary Assembly in excess of the criteria contained or implied in Article 21(1) itself. It followed that the requirement imposed by the Assembly that a list of nominees should contain at least one woman was incompatible with Article 21(1), unless and until a proviso was added to the rule allowing for exceptions. In particular, the Grand Chamber noted the suggestion by the Committee of Ministers that a State party should be able to submit a single-sex list if it ‘present[ed] convincing evidence’ to the effect that it had no other choice if it wanted to comply with Article 21(1) (para. 51). At first sight, it might seem that the Grand Chamber should have allowed the Assembly to impose any conditions it pleased. After all, the election process as such could be seen as entirely political [see for the equivalent processes for the ICJ, Bardo Fassbender, in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: OUP, 2006), Art. 9 MN 27; T.D. Gill, Rosenne’s The World Court. What It Is and How It Works (Leiden: Nijhoff, 6th ed., 2003), pp. 45, 53], and then it would not matter all that much if a candidate is not allowed on the list, or is voted down later. But that is not a good view of the matter: for one thing, the lists of three nominees exist to limit the choice of the Assembly and thus to preserve the role of the States parties in the election of the judges (an aspect of their sovereignty, as the Grand Chamber recognizes at para. 52). The Assembly is not the sole master of the proceedings, and so cannot be allowed free reign over the nominations. Also, Article 21(1), as part of the law of the Convention, imposes certain requirements, which the Assembly has no power to dilute. But, of course, the gender-equality rule only has a very slight potential to affect Article 21(1). It is extremely unlikely that a State party would ever be incapable of nominating at least one woman without having to nominate an incompetent person. To suggest otherwise would be quite unacceptable, and the Grand Chamber has not done so. The aim of gender-equality has survived judicial scrutiny almost unscathed. Indeed, it has even received judicial endorsement – which, of course, is as it should be.