Casual Vacancies in the ICJ: Law, Practice, and Policy

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The irredeemable loss of Judge Antonio Cançado Trindade has triggered a casual election in the International Court of Justice (ICJ), that will take place in November. This election will be contested, since there are now three candidates for the position: Marcelo Kohen (Argentinian national), Leonardo Nemer Caldeira Brant and Paulo Borba Casella (both of whom are Brazilian nationals). Any election at the ICJ arouses passions and triggers legal analysis as to the practice for the selection of judges and its implications. This blog has regularly published analysis on legal issues that emerge in the context of such elections (see for example, here, here and here).

This post will focus on the practice in casual elections concerning the replacement of judges from a non-permanent member of the Security Council (SC) (non-P5 member). In a post from 2021 Antonios Tzanakopoulos sought to dispel the notion that there is an expectation that a casual vacancy of a judge from a non-P5 member should result in the election of a replacement of the same nationality, and the variety of terms used to describe that alleged expectation. This post attempts to bring new elements into the discussion, including the practice during the times of the Permanent Court of International Justice (PCIJ) and the role of the national groups of the Permanent Court of Arbitration (PCA) or ad hoc.

The law: recalling the origins and clear scope of the ICJ Statute

The election of judges to the ICJ is regulated in Articles 2 to 15 of the Statute of the Court. These provisions follow, with minor variations, the Statute of the PCIJ.

The Statute provides that the members of the ICJ are elected by the General Assembly (GA) and by the SC from a list of persons nominated by the national groups of the PCA or ad hoc groups, in the case of UN Members not represented in the PCA (Article 4). If necessary, several rounds of balloting can be carried out (Article 11). Regular elections are carried out every three years  to (re)-elect each time 5 of the 15 judges (Article 13). Elections arising out of occasional vacancies, caused by reasons of the death or resignation of a judge, are carried out by the same method as that laid down for regular elections (Article 14).

Concerning the qualification of judges, the Statute provides, 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 [in 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.’

It is clear from these provisions that at ’every election’ (i.e. including elections to fill-in casual vacancies), judges must be elected ’regardless of their nationality’. This is reinforced by the fact that the election of judges ’regardless of their nationality’ has only two specific limitations: (i) two judges may not be nationals of the same state (Article 3) and (ii) the representation of the main forms of civilization and of the principal legal systems of the world (Article 9).

The binding nature of these provisions –and the lack of practice altering that nature– has been highlighted by scholars. Shabtai Rosenne considered that ‘there is no absolute rule or practice calling for continuity in the nationality of a person elected to fill an occasional’. John Dugard notes with respect to occasional vacancies to be filled by a person of the same nationality as the previous judge that ‘[t]here is, however, no rule that this should happen’.

The (100 years of) practice

I have identified 5 cases of casual elections of judges of non ’great powers’ (i.e. judges not of the nationality of permanent members of the Council of the League of Nations plus the US) during the time of the PCIJ and 15 casual elections of judges from non-P5 members in the period of the ICJ. This makes a total of 20 elections.

Of the 5 PCIJ elections, 4 concerned vacancies caused by the death of a judge: the replacements of judges Ruy Barbosa (Brazil) in 1923, Walther Schücking (Germany) in 1936, Edouard Rolin-Jaequemyns (Belgium) in 1937, Åke Hammarskjöld (Sweden) in 1938. The other case related to the resignation of Judge Wang Ch’ung-hui (China) in 1936.

Of the 15 cases concerning the ICJ, 12 concerned vacancies caused by the death of a judge: the replacement of judges José Barros Azevedo (Brazil) in 1951, Benegal Rau (India) in 1954, José Guerrero (El Salvador) in 1959, Abdel Hamid Badawi (Egypt) in 1965, Salah Tarazi (Syria) in 1981, Abdullah El-Erian (Egypt) in 1982, Nagendra Singh (India) in 1989, Taslim Elias (Nigeria) in 1991, Manfred Lachs (Poland) in 1993, Roberto Ago (Italy) in 1995, Andrés Aguilar (Venezuela) in 1996 and James Crawford (Australia) in 2021. The other 3 cases related to the replacement of non-P5 judges by reason of resignation: judges Mohammed Bedjaoui (Algeria) in 2001, Awn Shawkat Al-Khasawneh (Jordan) in 2011 and Hisashi Owada (Japan) in 2018.

Among the trends in these cases, it is interesting to highlight the following ones.

Frequency with which casual elections are contested. With just one exception, all other occasional vacancies (19) have been contested by a significant number of nominees from other nationalities (between 16 to 31 candidates for the PCIJ and between 2 to 12 candidates for the ICJ), nominated by a large number of national groups, representing all regions of the world and including ‘great powers’ (in the case of the PCIJ) or P-5 members (in the case of the ICJ). The exception is the casual vacancy on the ICJ occasioned by the resignation, in 2018, of Judge Owada. This exception can perhaps be explained in part by the impressive campaign of Judge Yuji Iwasawa, which reached the record of 42 nominations. This further shows that national groups understand that these elections can be contested by candidates of other nationalities (which ultimately implies the understanding that they can be elected).

Election of a judge of a different nationality. In 9 of the 20 cases, the successor judge has been of a different nationality of that of his predecessor (replacements for judges Schücking, Hammarskjöld, Rau, Guerrero, Badawi, El-Erian, Lachs, Bedjaoui and Al-Khasawneh). This shows that almost in half of the cases candidates from different nationalities were elected. However, the elected judges have always been from the same region of the replaced judge.

Lack of nomination of a judge of the same nationality. In 4 of these 9 cases, no candidate of the nationality of the judge to be replaced was a contender (replacements for judges Guerrero, Badawi, Bedjaoui and Al-Khasawneh). This situation could be explained by factors including a perceived need for alternation of judges within the regional group, an agreement among governments, or the lack of a competitive candidate of the nationality of the replaced judge. This shows that national groups understand there is no need of nominating (and ultimately electing) candidates of the same nationality.

Nominations by national groups. Two main observations can be extracted here. First, as noted, candidates from other nationalities have been nominated by a large number of national groups. This shows that national groups do not understand that there is a binding practice of electing candidates of the same nationality. Second, candidates with the highest number of nominations are not always the ones who win. During the years of the PCIJ, in all cases, the candidates with the highest number of nominations were the ones who won the election. However, for the ICJ in various elections the candidates that won the election were not the ones with the highest number of nominations (this happened in the replacements of judges Rau, Tarazi, Singh, Lachs, Aguilar and Crawford). In addition, the number of nominations of successful candidates can vary dramatically: from just one nomination for Judge Muhammad Khan (who replaced Judge Rau) to the record of 42 nominations for Judge Iwasawa.

Elections at the Assembly/GA and the Council/SC. In several of the ICJ elections surveyed there were more than one ballot either at the GA or at the SC (the case of the replacements of judges Rau, Tarazi, El-Erain, Elias, Ago and Aguilar). A similar pattern occurred in the election of judges for the PCIJ (replacement of judges Wang and Hammarskjöld). This proves that states do not consider there is any specific practice indicating that candidates of the same nationality should be elected.

In sum, the above observations show that, as Antonios Tzanakopoulos set out, neither national groups (most often composed of eminent scholars) nor states consider that there is a sort of binding practice of electing candidates of the nationality of the salient judge. On the contrary, all such nominations and elections clearly point to the direction that states consider themselves free to support candidates based on their merits and on state’s own policy considerations.

The policy and politics: a brief assessment

At the end of the day electing a judge for the ICJ implies (once the objective criteria are fulfilled) an analysis by states on which candidate would better serve that role. This may include different political and policy considerations, which include aspects related to professional background, prestige, gender, language (of importance on the basis of the ‘civilization’ and ‘legal systems’ criteria, as noted by Fassbender), the need for rotation, specific experience (e.g. in litigating or judging), power of persuasion to other judges, or a vision of international law common to states’ interests.

In this context, nationality appears to be just an additional element. For these reasons it cannot be automatically assumed that states that voted for a judge of the same nationality of the previous one have not been motivated by other reasons unrelated to nationality. In other words, nationality should not impede the discussion among states of whom among the nominees is the best one to fulfil the role of Judge of the ‘principal judicial organ of the United Nations’ and the world.

 

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Comments

José Alves says

September 7, 2022

Wonderful read, Facundo. But my feeling is that in the end of the day is “politics as usual”. I worked on these things previously, and what really counts is how committed is your state to voucher for you, including exchanging votes. Regarding this opening in particular, I see the Brazilians are really committed to elect Leonardo and the nationality-of-the-judge argument is just another weapon in their campaign. The Brazilian Minister of Foreign Affairs himself is campaigning for him. So, instead of relying solely on the “professional background” of the contender, states should be campaigning for their candidates. In sum, these legal arguments are secondary, if not immaterial for the election of an ICJ judge or any other person taking up an international position. Which, of course, is quite an unfortunate state of affairs. But that’s how it works.

Nicolas Boeglin says

September 7, 2022

Dear Professor Perez Aznar

Many thanks for this extremely valuable post.

Another element to take into consideration when choosing the best candidates is to try to have as judge elected at ICJ someone that have not been previously litigating before ICJ as council of States.

If doing so, we will have a "non judge" due to the fact that he will have to recuse systematically from coming cases when one of the two States appears to have been his "client" in the past. Considering the very extensive and diverse experience as council at ICJ of some lawyers, the risk of having recusation (as we observe it when Judge Crawford became judge at ICJ), is quite high.

Saludos desde Costa Rica.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

September 8, 2022

Dear Professor Perez Aznar

Many thanks for this extremely valuable and complete post.

Another element to take into consideration when choosing the best candidates is to try to have as judge elected at ICJ someone that has not been previously litigating before ICJ as counsel of States.

If doing so, we will have a "non judge" (or "half-judge") due to the fact that he will have to recuse systematically from coming cases when one of the two States appears to have been his "client" in the past. Considering the very extensive and diverse experience as counsel at ICJ of some lawyers, the risk of having recusals (as we observe it when Judge Crawford became judge at ICJ), is quite high.

Saludos desde Costa Rica.

Yours sincerely

Nicolas Boeglin

Peter says

September 8, 2022

I would like to say thank you for this very interesting post.

May I ask a question?
Why are there two Brazilian candidates?

An Argentinian candidate is not very surprising in light of the rivalry between Brazil and Argentina. But a second Brazilian candidate seems unwise and could lead to a split of the votes and boost the chances of the Argentinian candidate.

Facundo Perez Aznar says

September 9, 2022

Dear José, Nicolás and Peter,

Many thanks for your very valuable comments.

José, I agree with you that politics play an important role in the election of a judge for the ICJ. The question is, however, what elements do states include in their political analysis. The ICJ Statute provides that judges should be elected based on their ‘qualities’ and ‘regardless of their nationality’. The proceedings applicable to the elections seek to guarantee that these elements (rather than political arrangements) prevail, since the elections of judges are held by secret ballot both in the General Assembly and in the Security Council. In other words, the system provides tools to avoid the use of ‘politics as usual‘. There has been an increase in the use of ‘horse trading‘ at the international level in recent years and this is perhaps a good opportunity to try to limit it, at least in the process of electing judges for the Court. Having a judge of the same nationality can be an understandable objective of the state of the nationality of the judge to be replaced. But this should not be an impediment for each state to elect the best candidate, based on its individual policy considerations.

Nicolás, personally I don’t see a problem in electing judges that previously litigated before the ICJ. On the contrary, I think that that kind of experience can be useful, since in that way the Court has a sort of guarantee to have highly qualified judges who know the proceedings and the ‘way of thinking’ of states. Indeed, some of the most prestigious ICJ judges had previously litigated before it. Just to give an example, there is practically unanimity on the positive impact that Judge Crawford had in the Court’s operation. The own Statue recognises there is no problem in electing judges that previously litigated before it, by indicating that in these circumstances ‘[n]o member may participate in the decision’ of the specific case.

Peter, as regards your question, the Brazilian national group was the one that decided to nominate two candidates, and this reflects the quality and independence of national groups from governments. I may add that this practice is not uncommon and has already occurred in other elections.

Regards,

Facundo

José Alves says

September 9, 2022

From what I’ve heard, the Brazilian group in the PCA nominated both Leonardo and Paulo Borba. But the Gov decided to voucher for Leonardo, who has the support of the Bolsonaros.

Nicolas Boeglin says

September 10, 2022

Dear Professor Perez Aznar

I wonder how it is possible to have two nationals from Brazil running for this election. Only one is the official candidate, but if you have information of a "dupla brazileira" officially presented by Brazil, let us know the official link.

Just to complete the full picture of candidates, it must be noted that for this coming election at ICJ, Chilean lawyer Claudio Grossman pretended his name to be promoted by new chilean authorities. Here the official MFA communiqué indicating that Chile will no present him dated July 28th, 2002, due to the candidature for a seat at UN Human Rights Council:

https://minrel.gob.cl/noticias-anteriores/comunicado-de-prensa-10

Yours sincerely

Nicolas Boeglin

José Alves says

September 11, 2022

I agree, Facundo, and once again congratulations for the post. But my point is the following: does it really matter to say that there is (or that there is not) a “settled practice” to elect a judge from the same nationality in cases like this? Would the existence of a settled practice change states’ behaviour in any way if they wished to vote for someone else? Again, these are just arguments to justify a political choice, the same way as saying the candidate A is more qualified than Candidate B. What does “the best candidate” even mean?

Saludos!

Nicolas Boeglin says

September 11, 2022

Dear Professor Perez Aznar

Many thanks for your very kind answer. Considering that James Crawford was forced to recuse in many cases at ICJ after his election in 2014, due to his very extensive, diverse and long experience as "Crown´s Counsel", I really think that a "full time judge" it a better one that a "half time judge".

Sincerely yours

Nicolas Boeglin

Nicolas Boeglin says

September 11, 2022

Dear Professor Perez Aznar

Many thanks for your very kind answer. Considering that James Crawford was forced to recuse in many cases at ICJ after his election in 2014, due to his very extensive, diverse and long experience as "Crown´s Counsel", I really think that a "full time judge" is a better one than a "almost half time judge" at The Hague.
You can check for example the cases registered at ICJ involving Latin American States since 2014, to have a better idea of the effect of such designation at The Hague.

Yours sincerely

Nicolas Boeglin