On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 14. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).
This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. It would be the first time that there would be no British judge on the ICJ (and I think there was a British judge throughout the period of the Permanent Court of International Justice as well). It would break the tradition of there being a judge of the nationality of each of the permanent members of the UN Security Council on the ICJ. Finally, were he not to be re-elected, this would be a departure from the tradition that the regional allocation of seats on the ICJ bench mirrors the regional allocation of membership at the Security Council. This is because the re-election of Judge Bhandari from India and the election of Ambassador Salam from Lebanon would mean that Asia gets one additional seat on the Court and the WEOG (Western European and Other Group) gets one fewer seat.
I have spelled out the procedure for the election of ICJ judges, including what happens if the GA and SC are unable to agree initially on who is elected, in previous posts (here and here) and I won’t repeat it all here. Suffice to say that it is usual that several rounds of voting are needed in the GA and SC before candidates are elected. It only when the number of judges that have obtained an absolute majority in an organ is equal to the number of vacancies that the President of that organ notifies the results to the other organ. If more than five judges obtain an absolute majority (and this is easily possible) then further rounds of voting are required. On Thursday, the first time that only 5 judges obtained an absolute majority of votes was in the fourth round of voting in the SC and in the fifth round of voting in the GA. Four of the five on that list were the same in both organs and were duly declared elected. However, Judge Greenwood obtained an absolute majority of votes in the SC but not in the GA, and Judge Bhandari obtained an absolute majority in the GA and not the SC. In a sixth round of voting in the GA, with only Judges Bhandari and Greenwood on the ballot to fill the remaining vacancy, Judge Bhandari obtained 115 votes to Judge Greenwood’s 76. In the fifth round of voting in the SC, with only Judges Bhandari and Greenwood on the ballot, Judge Greenwood obtained 9 votes and Judge Bhandari 6. It was at this point that voting was suspended till Monday. On previous similar occasions, voting has been suspended for weeks (2014), a month (2011) or several months (1956). This time, we have just this weekend for the intense diplomatic negotiations that will inevitably take place.
As noted in a previous post, in prior cases where the SC and GA have initially reached divergent results in elections for the ICJ there has been the “democratic tendency” for the SC to defer to the GA as the plenary organ. However, there are reasons to suggest that in this case the matter may not be so straightforward.
For reasons already alluded to, it would be a dramatic result if Judge Greenwood were to fail to be re-elected. The composition of the ICJ usually mirrors the regional allocation of seats in the SC. If two Asian judges were elected in these elections, the result would effectively be a reallocation of a WEOG seat to Asia. It is worth pointing out that the allocation of seats to regions in the ICJ does not result out of a rule but only out of tradition. With the SC (and also the Economic and Social Counci), the GA decided on the regional allocation when it voted for amendments to increase the size of those bodies [GA Res. 1991 (XVIII)A and 2487(XXVI)]. That regional allocation was then included in the GA Rules of Procedure [footnotes to Rules 142, 143 and 145] and is also set out in the voting papers when elections occur for membership of those bodies. With the ICJ, Article 9 of the Statute requires the electors bear in mind that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the worlds should be assured.” However, there is no prescription in any rule as to how this is to be done but the tradition of regional allocation is an attempt to comply with the statutory prescription. Nonetheless, the regional allocation for the Court is not included in the voting papers given to electors and one only needs to study the arithmetic of the votes to see that individual electors do not necessarily vote according to the regional allocation. Former ICJ Judge Kenneth Keith, in an illuminating article [“International Court of Justice: Reflections on the Electoral Process” (2010) Chinese Journal of Int. L, para. 27 ] uses the 1999 election as an example and shows that:
“in the first ballot, the total number of votes for the two candidates who were seeking the Asian vacancy was 230 [with only 176 states voting], meaning that at least 54 States voted for both. Even in the second ballot when one of the Asian candidates did fall below the majority and was defeated, at least 44 States were still voting for both him and the successful candidate”.
The tradition of there being a Judge of the nationality of each P5 member is not an unbroken one. There was no Chinese judge on the ICJ bench from 1967 to 1985. However, this can be accounted for by the special position of China in that period. The beginning of this period maps was one where the nationalist government (in Taipei) represented China at the UN but was close to losing that representation to the communist government in Beijing. There might be some who question whether there should in fact always be a judge of the nationality of each P5 member on the ICJ bench given that a rule that may make sense on a political body like the Council (or made sense in 1945) is not easily justified on a judicial body like the ICJ . However, even if there were to be departure from this tradition, it would be a matter of regret if were the UK which suffered this loss first. The UK is not only a strong supporter of the Court but the only P5 member which has consistently accepted the compulsory jurisdiction of the ICJ, and always appeared in cases in which it is involved in at the Court (and other inter-state judicial bodies), which is not the case for other P5 members.
Let me conclude with a trivia question. As already mentioned, in this election all five judges whose terms were expiring stood for re-election. This is a rare occurence but I do not know how often this has happened and would be interested to know of other occasions when it has happened. If all five judges had been re-elected, which we now know will not happen, it would have meant that the composition of the ICJ bench did NOT change after a regular election. My question is this:
When has the composition of the ICJ Bench not changed after a regular election because all the judges whose terms were expiring were re-elected?