Election of Judges to the International Tribunal for the Law of the Sea

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2017 will be a busy year for elections to international tribunals. There will be elections later this year to elect five Judges of the International Court of Justice and six judges of the International Criminal Court (see here). Earlier this week, the States Parties to the United Nations Convention of the Sea elected seven Judges to the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges and elections for seven judges are held every three years. As with the ICJ and the ICC, ITLOS judges serve for a term of 9 years and may be re-elected [Art. 5(1)ITLOS Statute]. The purpose of this post is to simply to report the results of the 2017 ITLOS election and to make a few observations about possible trends in elections to international tribunals.

The States Parties re-elected two judges currently on the ITLOS bench: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). The five new judges taking up their seats on the 1st of October 2017 will be: Mr Oscar Cabello Sarubbi (Paraguay), Ms Neeru Chadha (India), Mr Kriangsak Kittichaisaree (Thailand), Mr Roman Kolodkin (Russian Federation), and Ms Liesbeth Lijnzaad (The Netherlands).  The full list of candidates for the elections can be found here. Judges are elected where they obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties [Art. 4(4), ITLOS Statute]

An interesting development in the current ITLOS election is the failure of two serving judges: Judges Joseph Akl (Lebanon) and Rudiger Wolfrum (Germany) to be re-elected.  The qualifications and experience of these judges are beyond doubt. However, both have been on ITLOS since its formation in 1996 and there might be a feeling that 21 years is long enough for anyone. I have heard it said at the UN there is a feeling among states that though there are no formal term limits for judicial positions, treaty bodies and the like, it is not healthy for individuals to be there for too long. It was a surprise to some (myself included) when the late Sir Nigel Rodley was not re-elected to the Human Rights Committee last year and perhaps the long period of service on the Committee was a factor. This is an issue that states should take into account in nominating candidates.

Two of the seven judges elected are women (Neeru Chadha and Ms Liesbeth Lijnzaad, who both recently represented their states in the Enrica Lexicie and Artic Sunrise proceedings before ITLOS.). Though it is pleasing to see the number of women judges go up from just the single female judge (Judge Elsa Kelly) on the  current ITLOS bench, 3 out of 21 is still not a particular good number. The statutes of the ICJ and ITLOS are perhaps products of their time in speaking about geographical diversity, representation of the principal legal systems of the world,  but not gender diversity. The ICC Statute, by contrast in Art. 36(8)(a)(iii) requires the States Parties to take into account, in addition to those other factors “a fair representation of female and male judges”. And so they have. There is a far greater representation of women judges on the ICC than on either ITLOS or the ICJ. Perhaps it is time to make formal changes to the processes by which international judges are elected as a prod to achieving fairer gender representation.

We have previously discussed the high number of ICJ judges who were previously members of the International Law Commission. Two of the judges elected this week – Kriangsak Kittichaisaree (Thailand) Roman Kolodkin have served on the ILC.

As the ITLOS Statute requires that equitable geographical distribution be assured among the Members and that there should be at least three Judges from each geographical group as established by the General Assembly of the United Nations [Arts. 2(2) & 3(2) ITLOS Statute], elections for ITLOS are held by reference to geographical groups. With two exceptions, there was more than one round of voting before a conclusion was reached as to who was elected from each group. The two exceptions were with regard to the African and the Eastern European groups. With regard to the former Judges Boualem Bouguetaia and Judge José Luís Jesus  were re-elected (out of 3 candidates) in a single round. With regard to the latter Roman Kolodkin (not to be confused with Judge Anatoly Kolodkin, who was an ITLOS Judge from 1996-2008, and who has a huge oil tanker vessel named after him) was the sole candidate and elected in one round.

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    Dariusz Gozdzik says

    June 17, 2017

    Thank you for an interesting article. I couldn't find which are in fact the "geographical groups" referred to in Article 3?

    Dapo Akande says

    June 17, 2017

    Dear Dariusz,

    You can find which states are in which regional groups on the UN website here.

    Kriangsak Kittichaisaree says

    June 18, 2017

    African Group: the two ITLOS judges who have been re-elected started their re-election campaign early and had been endorsed by the African Union as the AU candidates before the Attorney-General of Kenya announced his candidacy in March 2017. Judge Jesus of Capo Verde has been a foreign minister of his country and he competed with Judge Abdul Koroma of Sierra Leone for an ICJ seat before his successful election to ITLOS. (Koroma eventually won the election -- his first of the two terms at the ICJ -- after many rounds of voting both in the UNSC and the UNGA.)

    GRULAC: The Vice Minister of Foreign Affairs of Paraguay started his campaign in mid-2015. The incumbent ITLOS judge from Brazil passed away before the expiry of his term on 30 Sept. 2017. He was elected at a by-election in Jan. 2016 to replace Judge Rangel from Brazil who had resigned due to ill-health. UNCLOS States Parties preferred to wait until June 2017 to elect a judge from GRULAC. A former foreign minister of Costa Rica who had just finished his third term as an ILC member last Dec. entered the competition for the ITLOS election early this year, and Brazil presented its candidate only in March 2017. The Paraguay candidate had a clear head start.

    Roman = son of Anatoly Kolodkin.

    Western European States: It seemed that Germany has been focusing on its UN Security Council election more than anything else.

    Asia-Pacific was considered the 'group of death': with internationally influential India presenting a new candidate to carry on what another Indian had been doing for the past 21 years; ASEAN having two candidates to compete with one another -- an ordinary chap from Thailand and a deputy minister of marine affairs from Indonesia; and Lebanon presenting its incumbent ITLOS judge for re-election, with traditionally solid support from OIC, Arab League, and francophone member States. Lebanon's Judge Akl was running for his 4th term (the first three terms: 3 years (by drawing lots among ITLOS judges at the first election in 1994)plus two 9-year terms). Before the ITLOS election on 14 June 2017, only China, Japan, Rep. of Korea, India, and Lebanon had their nationals elected to ITLOS.

    There were only 2 women running for election to ITLOS this time, and both have been elected.

    ITLOS has one 'floating seat' to be competed between Africa and Western Europe. It is being occupied by Judge David Attard of Malta.

    Cyprus is classified as a member of the Asia-Pacific Group for the purpose of the ILC election; Western European group for the purpose of the ICC election; and ....??? for the purpose of the ICJ election.

    Dapo Akande says

    June 18, 2017

    Dear Kriangsak,

    First of all, many congratulations on your election to ITLOS! Second, many thanks for your comments and for providing more information about the election and about the candidates.

    Your comment prompts me to note that all 7 Judges elected in this round all served in the Foreign Ministries of their respective countries. A quick look at the background of judges at ITLOS suggests to me that there happen to be fewer people at ITLOS who were previously full time academics than at the ICJ (though there have been a some people like you with academic experience as well as foreign ministry experience).

    I hadn't realised that Roman Kolodkhin was son of Anatoly Kolodkhin! I once asked a trivia question about which children of ICJ Judges had gone on to be ICJ Judges or on to careers in international law. Though there have been two children of ICJ Judges that have been ad hoc judges of the ICJ there hasn't been a child of an ICJ judge that has been a regular ICJ judge. So I think the Kolodkhin's are something of a first in relation to a parent/child combination who have both become regular judges of the same international tribunal. [Someone has already pointed out to me that I have missed the opportunity of a trivia question - which international judge also has a vessel named after him, and also has a child that was a judge of the same international tribunal?]

    Though the number of women who have been elected is low, it is interesting that 2 out of the 2 women who stood for election were indeed elected. It was also the case that 4 out of the 4 women who stood for election to the International Law Commission last year were elected.

    Marko Milanovic says

    June 18, 2017

    Many congratulations from my end as well Kriangsak! And thanks Dapo for yet another nerd-gasm.