Last week Thursday (Nov. 6), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see ICJ Press Release). Judges Mohamed Bennouna (Morocco) and Joan E. Donoghue (United States of America) were re-elected to the Court. In addition, Professor James Crawford (Australia) and Kirill Gevorgian (Russian Federation) were elected as new members of the Court. There are five vacancies on the International Court of Justice every 3 years, including this year. However, for the second time in a row in regular elections for judges at the ICJ, the two organs of the UN charged with electing the judges have been unable to agree, at least initially, on the list of judges elected to the Court (arguably, the third time in a row if one includes the situation in the 2008 elections described below). This year, as was the case in the last regular elections in 2011 (on which see previous posts here and here), the two organs have suspended voting until a later date, after several rounds of balloting in each organ failed to produce a fifth candidate that was elected by absolute majority of both organs (see UN Press Releases here and here). The General Assembly and the Security Council will meet on November 17 to resume voting.
Under Articles 4, 8 and 10 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of the General Assembly and the Security Council. An absolute majority in the Security Council for the purpose of elections to the ICJ has been interpreted in practice as meaning eight votes, rather than the nine required for other Council decisions (see Opinion of the UN Office of Legal Affairs 1984 Juridical Yearbook 173, at 175, para. 8, also available here). Also, under Article 10(2) of the Statute, no distinction is drawn between permanent and non-permanent members (i.e there is no veto). The two organs meet separately, but concurrently, to conduct ICJ elections. Once five have obtained an absolute majority in one organ, the President of that organ will notify the President of the other organ of the names those candidates. Although each state member can only cast 5 votes in each organ it is mathematically possible, and in fact often happens, that more than five candidates will obtain an absolute majority in one organ. [For example, there 75 votes available in the SC – 15 states x 5 votes each. If there are 7 candidates who only need 8 votes each, all 7 can obtain 8 votes, which only totals 56 of the available votes.] It is the practice of both organs that only when five candidates have obtained an absolute majority is the result to be communicated to another organ. A proposal to select the five with the highest votes was previously rejected in the practice of both organs [see Hogan, “The Ammoun Case and the Election of Judges to the International Court of Justice”, (1965) 59 American Journal of International Law 908]. When 6 or more candidates obtain a majority, the ballot is rerun with all candidates.
In the elections held on Thursday Nov 6, the General Assembly conducted seven rounds of balloting and it was only in the seventh round that only 5 candidates obtained an absolute majority with Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) receiving an absolute majority, in addition to the four other candidates mentioned above. However, in the Security Council, where four rounds of voting took place on Thursday until only five candidates received a majority of votes, it was Susana Ruiz Cerutti, the current Legal Adviser to the Ministry of Foreign Affairs of Argentina and former Foreign Minister of that country, who obtained a majority in addition to the four candidates named in the first paragraph. In the seventh round of voting in the GA, she obtained only 2 votes less than the majority required in that body, while Mr Robinson received only 1 vote less than required for a majority in the Security Council. Voting was then suspended by both bodies until the following day.
On Friday Nov. 7, both bodies again met separately, but concurrently, in attempt to elect a fifth judge. There were seven rounds of balloting in each organ with Patrick Robinson obtaining a majority in the General Assembly in each round and Susana Ruiz Cerutti obtaining a majority (of 9 votes to 6) in the Security Council in each round. In the GA, Patrick Robinson’s majority increased as the votes progressed and he obtained more than double the number of votes of Susana Ruiz Cerutti by the end. However, as there was no agreement by the two bodies, it was agreed to suspend voting until November 17, 2014.
What Happens Next?
The scenario this year is very similar to what happened in 2011 when current Judge Julia Sebutinde ultimately prevailed, narrowly, over then sitting Judge Abdul Koroma after elections were postponed for a month (on which see previous posts here and here). In that year Judge Sebutinde was the one who had consistently obtained a (narrow) majority of votes in the General Assembly. When balloting resumed a month later, it was the Security Council that gave in to the Assembly’s wish. It has been suggested that this is what usually happens in cases of deadlock between the two organs, with there being a “democratic tendency” of the plenary organ eventually getting its way. [See for example this article by Judge Kenneth Keith on “International Court of Justice: Reflections on the Electoral Process” (2010) Chinese Journal of Int. L, para. 28 (one of the outgoing Judges at the ICJ this election cycle); also Fassbender in Zimmermann, Tomuschat, Oellers-Frahm & Tams (eds), Statute of the International Court of Justice: A Commentary (citing Rosenne), p. 328, para. 22].
If that trend were to be followed then this suggest a victory for Patrick Robinson when new elections are held. However, it is important to note that the GA has not always got its way. In 2008 when current Judge Abdulqawi Ahmed Yusuf ( Somalia) was elected, he received a majority in the Security Council (see here) in the two rounds of voting held in that organ. However, he did not receive a majority in the General Assembly in the first round held in that body. It was Miriam Defensor-Santiage ( Philippines) that had received a majority in the General Assembly (see here) in that first round. However, in subsequent rounds of voting in the General Assembly, held that same day, Judge Yusuf obtained more votes than the candidate from the Philippines, and was elected after the fourth round of voting in the GA. That particular election might be regarded as raising special circumstances as quite unusually, it was two candidates from different regions that were effectively in competition against each other. As it was effectively a vote to replace an African judge, for the candidate from the Philippines to have been elected would have meant reducing the number of African judges and increasing the Asian representation by one. It is therefore not surprising that the General Assembly switched its votes to one of the African candidates. [As an aside, the elections in 2008 are also of interest as they raise the issue of who can withdraw a candidacy in ICJ elections and what constitutes a “meeting” of the GA for the purposes of elections to the ICJ. The former issue is of interest because candidates are not nominated by states but by national groups of the Permanent Court of Arbitration or equivalent national groups. However only states take part in voting and are represented at the UN. Nationals groups are not represented so in practice it is the delegations of states that withdraw candidacies. But is this consistent with the ICJ Statute? In practice such withdrawals are accepted. The latter issue is important because of the provisions of Article 12 of the ICJ Statute described below which sets out a procedure for breaking the deadlock between the GA and SC after three “meetings”.]
What if the GA and the SC are still deadlocked after the voting on Nov. 17. The meetings held on Nov. 17 would be the third meetings held to elect ICJ judges in this cycle. A failure to elect after the third meeting would then mean that Art. 12(1) of the Statute could come into play. It reads:
“If, after the third meeting, one or more seats still remain unfilled, a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council, for the purpose of choosing by the vote of an absolute majority one name for each seat still vacant, to submit to the General Assembly and the Security Council for their respective acceptance.”
I discussed this procedure and its implications in my post about the ICJ elections held three years ago. I pointed out there has only been one case where the joint conference has been resorted to, by the League of Nations with regard to elections to the Permanent Court of International Justice. It has never been used with regard to the ICJ. Also, as has been pointed out in a 1984 opinion of the UN’s Office of Legal Affairs it is not mandatory to resort to the joint conference and “it seems more practical that the electoral organs should proceed to further “meetings”.” (p. 176, para. 21 – also available here).
A word about the New Judges
Finally, a few words about the two people who will become judges at the ICJ in February 2015. They are both well known international lawyers who are eminently qualified to sit on the ICJ (as are the two remaining candidates!) Ambasssador Gevorgian is currently the Director of the Legal Department of the Russian Ministry of Foreign Affairs and a member of the International Law Commission. Professor Crawford is of course Whewell Professor of International Law at the University of Cambridge (it is amusing that one of the UN Press releases announcing the results simply describes him as Research Professor at Latrobe University Australia – a part time position that he holds. Presumably that press release was written a Latrobe graduate!). He is undoubtedly one of the leading international lawyers of this generation. In addition to his considerable academic output, he has appeared in nearly 30 cases before the ICJ and over 20 other inter-state arbitrations, in addition to acting as counsel or arbitrator in numerous other arbitral proceedings and cases.
[Triva Question – James Crawford’s election to the ICJ means that all those who have held the Whewell Professorship of International Law at Cambridge since the creation of the ICJ have been elected to the Court, with one exception. In addition, there has been one ICJ Judge who left the Whewell Professorship before the creation of the present Court.
Readers – are invited to say in the comments box below, which Whewell Professors fit the categories just described, ie have been elected to the ICJ, did not proceed to the ICJ & left the Whewell chair before the ICJ was created].