Casual Vacancies in the ICJ: Is There a Special Practice?

This blog has regularly published comment on legal issues that emerge in the context of elections to the Bench of the ICJ. For any scholar of the Court, these matters are exciting and interesting, not to mention surrounded by a certain amount of bewilderment as to ‘unwritten rules’, ‘expectations’, ‘customs’, and ‘practices’ at play in the corridors of the UN and in the grand lobbies of Permanent Missions. Are the five permanent members of the Security Council always to be represented on the Bench? Is there a hard-and-fast practice as to regional representation? Is there a practice with respect to the principal language of aspiring judges? These are just some of the questions for which one will not find an answer in the Court’s Statute.

The Statute merely states, in Article 2, that ‘[t]he Court shall be composed of a body of independent judges, elected regardless of their nationality from among 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’. In turn, Article 9 provides that ‘[a]t every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required [as per Article 2], but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.’ These provisions establish, per Rosenne, a ‘double general criterion’ for election to the ICJ (as quoted by Fassbender in the ICJ Statute Commentary to Art. 9).

The sad and untimely death of James Crawford has triggered a casual election in the Court, an election that will be contested, since there are now two candidates for the position on the Bench (Hilary Charlesworth and Linos-Alexander Sicilianos). There has been some discussion, thus, as to whether there exists some sort of ‘practice’ of casual elections not being contested, or even an ‘expectation’ of a candidate of the same nationality as the one who vacated the seat being elected. This is an intriguing question: is there something special about casual rather than regular (triennial) elections to the Bench of the ICJ? Is there any ‘practice’ as to not contesting such elections or an ‘expectation’ of being elected? What do these ‘practices’ mean (note the variety of terms already used, not just by me, but in scholarship), and what is their effect on the constitutive instrument of the Court? These are the three questions which this short post will discuss briefly.

Casual v Regular (Triennial) Elections

Casual (or occasional) elections at the ICJ are triggered by an occasional vacancy, caused by the resignation or death of a judge, as per Articles 14 and 15 of the Statute. Such elections are different from the ‘regular’, triennial election which leads to the (re-)election one third of the Bench each time.

There is some ‘practice’, or an ‘understanding’, at play with respect to regular, triennial elections. This practice refers to the equitable regional representation (or equitable geographic distribution) on the bench, which reflects that in the Security Council (also, conveniently, composed of 15 members, though states this time): 3 seats for the African Group (GAFS); 2 for the Latin American and Caribbean Group (GRULAC); 3 for the Asia-Pacific Group (GAAS); 2 for the Eastern European Group (EES); and 5 for the Western European and Other Group (WEOG). Within this practice of equitable regional representation there is also a practice of a judge of the nationality of the five permanent members of the Security Council always being elected to the Bench. This practice has been helpfully summarised by Bruno Gelinas-Faucher in this post over at Opinio Juris.

There are a couple of things to note about this practice: the first is that there has been recently –in 2017– quite a striking departure from it when an incumbent Judge of the Court, Sir Christopher Greenwood, failed to win re-election to the Bench, leaving the Court without a judge of UK nationality for the first time since the creation of the ICJ. (While there was no judge of Chinese nationality on the Bench between 1966 and 1985, this was because the two governments vying for representation of the state at the UN during that time simply did not nominate anyone for election.)

The second thing to note is the wide variety of terms used in scholarship to describe this ‘practice’ –and the ‘departure’ from it. Gelinas-Faucher, for example, calls it ‘election practice’ in his post, and wonders whether the 2017 ‘departure’ from it is a ‘one-off episode’ or a ‘new trend’, altering ‘old traditions and practices’. Georget, in her discussion of Article 4 in the ICJ Commentary uses the terms ‘conventions’ and ‘understandings’, and even calls the constant presence of judges of P5 nationalities a ‘conventional rule’, though she hastens to add that this does not amount to a ‘legal right’. Fassbender, in his commentary to Article 9, in turn, calls this ‘a custom or tradition’ and quotes Rosenne calling it an ‘established practice’ or ‘understanding’, and Mosler calling it ‘a generally tolerated custom respected by electoral bodies’.

I shall return to this rather bewildering variety of terms in the last section of this post, after first reviewing the practice in casual elections.

Practice in Casual Elections

In his commentary to Article 13 of the Statute, Dugard notes that the resignation of Judge Owada in 2018 sparked a discussion as to whether ‘an expectation existed’ that the seat be filled by a judge of the same nationality. In his commentary to Article 14, he further noted that ‘in practice, it is not uncommon for an occasional vacancy to be filled by a person of the same nationality as the previous incumbent, particularly where the vacancy arises from the death or resignation of a judge’ from a P5 state. He continues, however, to stress that ‘there is no rule that this should happen, and there have been many instances in which a judge of a different nationality from that of her predecessor has been elected.’

Dugard does not offer any authority for these statements in the Commentary, but what he writes is actually borne out by the relevant data. Perhaps it would be easier to review the practice by nuancing it according to the following distinctions: the first is the distinction between P5 and non-P5: in the case of an occasional vacancy created by the death or resignation of a judge from a P5 state, it is true that the election is (or has been so far) mostly uncontested, and that the person eventually elected had the same nationality as the judge who passed away or resigned.

By contrast, with just one exception, all other occasional vacancies triggered by death or resignation of judges of non-P5 nationalities have actually been contested, and indeed contested by a significant number of nominees, nominated by a large number of national groups (whether PCA or ad hoc), representing all regions of the world and including P5 members. The exception is the last casual vacancy on the Court, occasioned by the resignation, in 2018, of Judge Owada.

Perhaps it would be useful to draw another distinction here: one between resignation and death. Resignation is a controlled process, at least to a large extent. Once Judge Al-Khasawneh had been appointed Prime Minister of Jordan, for example, his resignation from the Bench had to be expected. In the case of resignation of judges of non-P5 nationalities, Judges Bedjaoui and Al-Khasawneh were succeeded by persons of a different nationality after a contested election, and after the national groups of their states did not nominate a candidate of the same nationality. Only Judge Owada was succeeded by a person of the same nationality in an uncontested election.

Death, by contrast, is a largely unexpected and unforeseen event. In the 10 cases of death of a judge of non-P5 nationality that I tracked (not including Judge Crawford), all casual elections were contested by at least 3 candidates nominated by numerous national groups, and sometimes by as many as 12 (in the case of the seat vacated by Judge Sir Benegal Rau in 1954). The only case where the election was contested by only 2 candidates was that occasioned by the death of Judge Lachs in 1993. In that case the candidate of the same nationality as Judge Lachs withdrew prior to voting, and the candidate of Hungarian nationality was subsequently elected.

The nomination of multiple candidates by many national groups in these contested elections following the death of an ICJ judge demonstrates that there is no ‘expectation’, at least on the part of states, that the seat ought to go to a person of the same nationality. As Dugard also notes in his commentary to Article 15, ‘[e]lections to fill occasional vacancies have invariably been contested by strong candidates’. This is also borne out by the fact that on many occasions, such as the elections for the seats vacated by Judges Ago, Elias, or Tarazi, the voting was close between (some of) the candidates and went to multiple rounds.

Characterisation and Effect of ‘Practice’ in ICJ Elections

Throughout this brief overview of what happens in ICJ elections, both regular and casual, a wide variety of terms has been quoted as used by commentators and scholars and italicised by me: practice, established practice, election practice, custom, convention, understanding, tradition, expectation, trend. This is apt to confuse: lawyers, and especially international lawyers, associate certain terms, such as ‘custom’ or ‘established practice’, with strong normative overtones. Other terms, such as ‘expectation’ or ‘understanding’, and less so ‘tradition’, do also seem to carry some, though reduced, normative weight. Terms like ‘trend’, on the other hand, or ‘tendency’ seem to be rather neutral, factual descriptors for the most part. And yet all these terms are on occasion used, without distinction, to describe anything from seat allocation by means of equitable regional representation (a practice or understanding with a strong normative element), to the constant presence of judges of the nationality of the Permanent Members of the Security Council on the ICJ Bench (until recently), to a tendency to elect persons of the same nationality in cases of occasional vacancies or to not contesting occasional elections (which is not borne out by the facts, to begin with, and appears to have no normative significance at all).

Even when terms with strong normative overtones are used, authors are sometimes quick to note that these ‘practices’ or ‘customs’ establish no legal right. Indeed, it must be so. But we must also be careful with the terms we use, especially when the same terms in other contexts are terms of art which signify strong normativity. When discussing particular tendencies or trends without normative significance, it would be best to speak precisely of ‘trends’ or ‘tendencies’ –if that.