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Home EJIL Analysis Outcome of 2016 Elections to the International Law Commission + Trivia Questions

Outcome of 2016 Elections to the International Law Commission + Trivia Questions

Published on November 5, 2016        Author: 

On Thursday the United Nations General Assembly (GA) elected the individuals who will serve in the International Law Commission (ILC) for the five year term beginning in 2017. The Commission, which is a subsidiary organ of the GA, has a mandate to assist in the codification and progressive development of international law. It is composed of 34 members who serve in their individual capacities.  The outcome of the elections held on Thursday can be viewed here. A number of excellent academic international lawyers were elected to the Commission for the first time, most notably August Reinisch (Austria), Charles Jalloh (Sierra Leone) and Claudio Grossman (Chile) who all have impressive academic credentials as well significant practical experience of international law.  The Commission will benefit from their addition. However, as is often the case with UN elections, there are some surprises in the result, with some excellent academic international lawyers also failing to be elected to the Commission, particularly Mathias Forteau (France), Chester Brown (Australia) , Tiya Maluwa (Malawi), and Marcelo Kohen (Argentina) – all of whom also have impressive academic credentials and significant practical experience of international law.

There is a very marginal improvement in the position of women on the ILC. There will be three four women on the ILC, with Patrica Galvão Teles (Portugal), Marja Lehto (Finland), and Nilüfer Oral (Turkey)  joining Concepción Escobar Hernández (Spain) who was re-elected. It is very worrying that in the history of the Commission, only 6 7 women have been members and this is the first time that 3 more than 2 women will be serving together. Still, even on the new Commission,  fewer only slightly more than 10% of its members will be women. (Update: corrections in italics because of the comments below)

One other remarkable feature of the elections just concluded was that two of those nominated for the ILC in this round were previously judges on international tribunals. Koffi Afande (Togo) was, until June, a Judge at the International Criminal Tribunal for the Former Yugoslavia, and Manuel Ventura Robles (Costa Rica) was until last year a judge at the Inter-American Court of Human Rights. Both failed to be elected.

The close links between the ILC and the International Court of Justice (ICJ) has been the subject of academic commentary, particularly with regard to the use by the ICJ of the ILC’s work. In a comment to a previous post, Kriangsak Kittichaisaree who is an outgoing member of the ILC (and who did not stand for reelection) noted that 36 members of the ILC went on to be elected as members of the ICJ. In that  previous post, I noted that about half of the current members of the ICJ were previously on the ILC. So the ILC has been a good staging post for subsequent election to an international judicial position.

However, I wonder how common it is for the opposite path to be followed, i.e to go from being a judge at an international tribunal to membership of the ILC. Many have served on the ILC either concurrently with or after serving on bodies with quasi-judicial functions like the treaty bodies established by human rights treaties.

These points lead me to 2 trivia questions:

  1. Apart from the women mentioned above, which other women have been members of the International Law Commission?

  2. Have there been any members of the ILC who were judges on international tribunals while they were members of the ILC, or prior to election to the ILC?

 Answers in the comments box please!

Update: In the original post I said 5 women had been elected to the ILC, but I think there have been 6 7. I would like to express my sincere and deep apology to Professor Oral for omitting her from my account of those elected in the first place.

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17 Responses

  1. Valentin Jeutner

    For question 1:

    Marie Jacobsson (Sweden)
    Xue Hanqin (China)
    Paula Escarameia (Portugal)

  2. Marija Đorđeska Marija Dordeska

    Dear Dapo,
    Thank you again for an excellent post and interesting questions! If you allow me, I would like to note that Judge Ferrari Bravo was the first (and to my count only) judge at the ICJ who later became also an ILC member. On the question of women at the ILC, I counted six (and not five). In addition to those listed, there were also Marie Jacobsson, Xue Hanqin, and Paula Escarameia-but please correct me if I am wrong.

    I also wrote an article on the relationship between the ICJ and the ILC, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2578054.

  3. Emily

    The Turkish candidate is also a woman and was elected.

  4. Seline Trevisanut

    Dear Dapo,
    Just a quick comment: you forgot one of the women elected on Thursday, Prof. Nilufer Oral (Bilgi University – Turkey). So there will be four women serving together!

  5. Işıl Aral

    Apart from the names mentioned, Nilüfer Oral is the fourth woman member of the ILC.

  6. Dapo Akande

    Dear all,

    When I wrote the post I thought that the first of my two questions above would be easy. It appears that it is easy but that I myself had made 2 significant errors! After I wrote the post I immediately realised that there were 3 other women I had in mind apart from the 3 I had mentioned and updated the post moments after I first put it up. However, I did not realise that 4 women were elected in this round and not 3. Thank you to everyone who pointed out my errors!

    And many thanks to Marija for getting the answers going with regard to question no. 2.

    Dapo

  7. Giovanny Vega-Barbosa

    Dear Dapo,

    Thank you for your very timely post. Some clarifications are required. There were four women elected by the ILC This year. You forgot to mentio Ms. Oral, Nilüfer (Turkey). You also forgot to mention that Prof. Marcelo Kohen, Professor of the Geneve Graduate Institute from Argentina, although an excellent scholar, was not elected last thursday. Now let me address your questions. To my knowledge there have not been members of the ILC who served at the same time as judges of international courts or tribunals. However, it is worth noticing that many members of the ILC have served as counsel before those courts and tribunals, and moreover as international arbitrators. There is one case of a former Judge of the ICJ who was elected by the ILC to be a member, that is…Mr. Luigi Ferrari Bravo from Italy. Another former Judge and President of the ICJ was a candidate to fill a vacancy in the ILC but failed to be elected by the Commission, is… Mr. Eduardo Jimenez de Arechaga from Uruguay. And it may also be of interest to note that a former Registrar of the ICJ has been elected a member of the ILC by both the Commission and the General Assembly, that is…Mr. Eduardo Valencia-Ospina from Colombia, my country.

  8. Dapo Akande

    Dear Giovanny,

    Many thanks for your answers. I had intended to include Marcelo Kohen in my list of notable academics who failed to make it in the election but somehow forgot do so in the writing the post.

    Thanks for also pointing out that Eduardo Jimenez de Arechaga had failed to be elected to the ILC after he left the Court. In what year did this happen? He served on the ILC in the 1960s before election to the Court but I didn’t realise that he stood for election after he left the court.

    I should point out to all readers that while I (wrongly!) felt confident that I knew the answer to question 1, I asked question 2 because I don’t myself know what the answers are.

    Dapo

  9. Sotirios Lekkas

    Some thoughts on Q2: Sir Humphrey Waldock and Alfred Verdross were ECtHR judges whilst ILC members. Lucius Caflisch was an ECtHR judge before being elected to the ILC. I think James Kateka was for a short period an ILC member whilst an ITLOS judge (unsure about that).

  10. Arnold Pronto

    Dear Dapo,
    You have asked an interesting set of questions. The background of the ILC membership has been diverse over the years. There have been Attorney-Generals, foreign ministers, and even a prime minister!

    Other examples of former judges include Lucius Caflisch who had been a judge at the European Court of Human Rights prior to being elected to the ILC. On occasion, the ILC has been confronted with questions of the propriety of its members serving elsewhere. The issue is not so much a problem from the perspective of the ILC, for which members only serve part-time, and whose Statute is silent on the matter. It is usually more of a question from the perspective of the internal rules of the court in question (i.e. limiting sitting judges from being members of other institutions). To my knowledge, the ICJ has the most developed position on this matter. So, in 1979, Roberto Ago, after having been elected to the ICJ, had to obtain special permission from the then President of the ICJ (Waldock, himself a previous ILC member and Special Rapporteur) to come to the ILC to introduce his (Ago’s) final report on State Responsibility (which had been prepared and submitted prior to his election). It is, in fact, common for ILC members who are elected to an international tribunal to resign from the Commission. This has usually been the case with election to the ICJ, but not exclusively (in 1999, the Commission held casual vacancy elections to fill the positions left vacant following the resignations of Luigi Ferrari Bravo (already mentioned in this discussion thread) upon his election to the European Court of Human Rights, and of Mohamed Bennouna upon his election (first) to the International Tribunal for the Former Yugoslavia). An example of a different outcome is that of James Kateka whose election to ITLOS (in 2005) overlapped, for one year, with his membership in the ILC (which ended in 2006).

    (Note also that while the election of women is a more recent phenomenon, there were female candidates nominated for election to the ILC as far back as the 1970s).

    Regards,
    Arnold Pronto
    Principal Legal Officer
    Secretariat of the ILC

  11. Kriangsak Kittichaisaree

    Dapo,
    Thanks for mentioning me in your post. I did not run for reelection to the ILC but am running for election to one of the two seats for Asia at ITLOS for the term 1 Oct. 2017-30 Sept 2016, at the election to be held in mid-June 2017.

    Some interesting facts to share. I was at the UN in NYC during the last leg of the ILC election campaign but had to leave in the evening of 2 Nov. I was often asked who the hardest working ILC member during my term was. My answer was and still is Sir Michael Wood, who cane last in the Western European and Other State group at the latest election!! Another question I was frequently asked: who were the unworthiest ILC members? I can’t share my answers with you….
    Interesting facts: Laraba from Algeria never turned up to campaign in person but got the highest votes of all the candidate from Africa!
    Regarding your second question, I just would like to add the following. The first chairman of the ILC had served as a judge of the PCIJ before his election to the ILC. He was from the US and one of the most prestigious prize or award in IL has been named after him. ICJ Judge Ago of Italy was allowed by the ICJ to continue to work on an exceptional basis as Special Rapporteur of the ILC to complete his work on the topic State Responsibility.

  12. Kriangsak Kittichaisaree

    Correction: Michael Wood has been re-elected but came last (jointly with Escobar Hernandez) of those elected in his regional group. To be fair to him, he did not turn up to campaign in NYC as much as the other candidates from the group.

  13. Dapo Akande

    My thanks to Sotirios Lekkas and Arnold Pronto for their comments, which came in practically simultaneously (they were both held in moderation for a while so neither had seen the answer of the other). Those are very helpful examples!

    It is interesting to note that the examples of concurrent membership of the ILC and an international tribunal relate to the ECtHR and ITLOS in their early years, when those tribunals were not particularly busy and the members were practically part time.
    It was pointed out in answer to a previous trivia question on this blog that there was even an example of a judge (Hermann Mosler) holding concurrent membership of the ICJ and the ECtHR for a period of time.

    Thanks also to Kriangsak for noting the example of Manley Hudson (the American he mentioned) who was the first Chairman of the ILC and had previously been on the PCIJ.

  14. RJ

    do investment tribunals count?

  15. Dapo Akande

    Dear RJ,

    That’s a good question. For the purposes of this question I would like to confine the expression international tribunals to standing international courts and tribunals, i.e those not constituted to hear a particular dispute. That would exclude investment tribunals and would also exclude WTO dispute settlement panels as well as inter-state arbitral tribunals. But it would include the WTO Appellate Body.

    Though I did not have them in mind when asking the question, I suppose my definition would also include international administrative tribunals established to hear staff disputes with international organizations.

  16. Omri Sender

    Dear Dapo,

    I believe that another example of a former ICJ Judge later serving on the ILC is that of Judge Sergei Borisovitch Krylov (USSR), who was a member of the Court between 1946-1952 and then served on the ILC between 1954–1956.

    And like Judge Ago, Judge Schwebel had also returned to Geneva while serving on the Court — to introduce to the ILC in the summer of 1982 his last report on Non-Navigational Uses of International Watercourses that he “had begun the preparation of … prior to his resignation from the Commission in 1981 on his election to the International Court of Justice” (ILC Report, A/37/10, 1982, chap. VII(A), para. 251).

    Best wishes,
    Omri

  17. Sai Prasen Mangalam

    Dear Dapo, Have a look at the state of affairs in India. Politics is given precedence to merit…sordid

    http://thewire.in/74467/decoding-indias-surprising-nomination-to-the-international-law-commission/

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