ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

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On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 13. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. It would be the first time that there would be no British judge on the ICJ (and I think there was a British judge throughout the period of the Permanent Court of International Justice as well). It would break the tradition of there being a judge of the nationality of each of the permanent members of the UN Security Council on the ICJ. Finally, were he not to be re-elected, this would be a departure from the tradition that the regional allocation of seats on the ICJ bench mirrors the regional allocation of membership at the Security Council. This is because the re-election of Judge Bhandari from India and the election of Ambassador Salam from Lebanon would mean that Asia gets one additional seat on the Court and the WEOG (Western European and Other Group) gets one fewer seat.

I have spelled out the procedure for the election of ICJ judges, including what happens if the GA and SC are unable to agree initially on who is elected, in previous posts (here and here) and I won’t repeat it all here. Suffice to say that it is usual that several rounds of voting are needed in the GA and SC before candidates are elected. It only when the number of judges that have obtained an absolute majority in an organ is equal to the number of vacancies that the President of that organ notifies the results to the other organ. If more than five judges obtain an absolute majority (and this is easily possible) then further rounds of voting are required. On Thursday, the first time that only 5 judges obtained an absolute majority of votes was in the fourth round of voting in the SC and in the fifth round of voting in the GA. Four of the five on that list were the same in both organs and were duly declared elected. However, Judge Greenwood obtained an absolute majority of votes in the SC but not in the GA, and Judge Bhandari obtained an absolute majority in the GA and not the SC. In a sixth round of voting in the GA, with only Judges Bhandari and Greenwood on the ballot to fill the remaining vacancy, Judge Bhandari obtained 115 votes to Judge Greenwood’s 76. In the fifth round of voting in the SC, with only Judges Bhandari and Greenwood on the ballot, Judge Greenwood obtained 9 votes and Judge Bhandari 6. It was at this point that voting was suspended till Monday. On previous similar occasions, voting has been suspended for weeks (2014), a month (2011) or several months (1956). This time, we have just this weekend for the intense diplomatic negotiations that will inevitably take place.

As noted in a previous post, in prior cases where the SC and GA have initially reached divergent results in elections for the ICJ there has been the “democratic tendency” for the SC to defer to the GA as the plenary organ. However, there are reasons to suggest that in this case the matter may not be so straightforward.

For reasons already alluded to, it would be a dramatic result if Judge Greenwood were to fail to be re-elected. The composition of the ICJ usually mirrors the regional allocation of seats in the SC. If two Asian judges were elected in these elections, the result would effectively be a reallocation of a WEOG seat to Asia. It is worth pointing out that the allocation of seats to regions in the ICJ does not result from a rule but only out of tradition. With the SC (and also the Economic and Social Council), the GA decided on the regional allocation when it voted for amendments to increase the size of those bodies [GA Res. 1991 (XVIII)A and 2487(XXVI)]. That regional allocation was then included in the GA Rules of Procedure [footnotes to Rules 142, 143 and 145] and is also set out in the voting papers when elections occur for membership of those bodies. With the ICJ, Article 9 of the Statute requires the electors bear in mind that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the worlds should be assured.” However, there is no prescription in any rule as to how this is to be done but the tradition of regional allocation is an attempt to comply with the statutory prescription. Nonetheless, the regional allocation for the Court is not included in the voting papers given to electors and one only needs to study the arithmetic of the votes to see that individual electors do not necessarily vote according to the regional allocation. Former ICJ Judge Kenneth Keith, in an illuminating article [“International Court of Justice: Reflections on the Electoral Process” (2010) Chinese Journal of Int. L, para. 27 ] uses the 1999 election as an example and shows that:

“in the first ballot, the total number of votes for the two candidates who were seeking the Asian vacancy was 230 [with only 176 states voting], meaning that at least 54 States voted for both. Even in the second ballot when one of the Asian candidates did fall below the majority and was defeated, at least 44 States were still voting for both him and the successful candidate”.

The tradition of there being a Judge of the nationality of each P5 member is not an unbroken one. There was no Chinese judge on the ICJ bench from 1967 to 1985. However, this can be accounted for by the special position of China in that period. The beginning of this period was one where the nationalist government (in Taipei) represented China at the UN but was close to losing that representation to the communist government in Beijing. There might be some who question whether there should in fact always be a judge of the nationality of each P5 member on the ICJ bench given that a rule that may make sense on a political body like the Council (or made sense in 1945) is not easily justified on a judicial body like the ICJ . However, even if there were to be departure from this tradition, it would be a matter of regret if it were the UK which suffered this loss first. The UK is not only a strong supporter of the Court but the only P5 member which has consistently accepted the compulsory jurisdiction of the ICJ, and always appeared in cases in which it is involved in at the Court (and other inter-state judicial bodies), which is not the case for other P5 members.

Let me conclude with a trivia question. As already mentioned, in this election all five judges whose terms were expiring stood for re-election. This is a rare occurence but I do not know how often this has happened and would be interested to know of other occasions when it has happened. If all five judges had been re-elected, which we now know will not happen, it would have meant that the composition of the ICJ bench did NOT change after a regular election. My question is this:

When has the composition of the ICJ Bench not changed after a regular election because all the judges whose terms were expiring were re-elected?

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    Comments

    Nguyen Phu says

    November 11, 2017

    Is Judge Crawford not British enough to count as a P5 judge?

    Marko Milanovic says

    November 11, 2017

    Judge Crawford ran for the bench as an Australian national.

    Roger O'Keefe says

    November 11, 2017

    Judge Crawford has Australian and only Australian nationality. How could he possibly be British? It would be like calling former Judge Weeramantry Australian or any number of other African (including North African) former judges French on the mere basis of their having spent a period of their respective careers in the state in question.

    Ivan Krno says

    November 11, 2017

    Answer to your question, Dapo. All five sitting Juges were re-elected in 1948 election, although they faced competition. But one has to take into account the fact that they had just served the short term of office of three years, following their first election on 6 February 1946 in London. Their names were drawn when it was necessary to determine who would serve only three years, five others were to serve six years and the remaining five the full term of nine years. Another election when all five sitting judges sought re-election took place in 1999, Four of them were re-elected (although two of them had served on the Bench only for some four years, completing a term of office of one Judge who resigned and of another who died while in office). The remaining fifth Judge (at that time Vice-President) failed.
    As far as the absence of a Chinese Judge on the Bench between 1967 and 1985 is concerned, the explanation is simple. When 80-year old Wellington Koo (then Vice-President of the Court) was retiring on 5 February 1967, no Chinese candidate was nominated for the 1966 election. No Chinese candidate was nominated in any of the subsequent elections (even after the change in the representation of China in the UN in 1971) until 1984. In the 1984 election Professor Ni was nominated and easily elected. Since that time there has always been a Chinese Judge on the Bench (Judge Shi between 1994 and 2010 and Judge Xue since 2010).

    Anon says

    November 12, 2017

    Interesting post, Dapo. Looking at the composition of the Council, assuming none of the P5 accept opening a precedent that could come back to hit it, Greenwood will be continuously re-elected unless one of the three non-P5 European nations (Italy, Sweden, Ukraine) sides with Bhandari. Now this would have been unlikely pre-Brexit, but maybe someome will be willing to give Britain a taste of its actual status without EU support.

    John Morss says

    November 13, 2017

    Dynasticism seems peculiarly out of place at the ICJ, so perhaps the challenge to the UK seat is to be celebrated not deplored... nostalgia isn't what it used to be! The executive P5 is with us for a while, but a judicial P5 may well be past its use-by date...

    ProfTSNSastry says

    November 13, 2017

    Interesting twist of politics. In case India wins it may open the doors for rethinking on the composition of Council. The p5 status may needs an alteratiin according to contemporary realities than living with pre cold war politics.

    Anindya Basarkod says

    November 13, 2017

    This maybe a rookie question, but why would Judge Greenwood have to fight it out with Judge Bhandari? Isn't Judge Bhandari's term going to end only in 2021?

    zhai says

    November 13, 2017

    Judge Bhandari took over Judge Al-Khasawneh in 2012, who last got re elected in 2008. so expiry of his term would be in 2017?

    Mawuse Oliver Barker-Vormawor says

    November 13, 2017

    No end in sight as General Assembly votes overwhelmingly in favour of Judge Bhandari while Judge Greenwood obtains absolute majority in Security Council.

    However, Judge Bhandari loses one vote in the Security Council and thus drops from 6 to 5 votes. (1 abstention)

    No end in sight to this impasse. My guess is that the UK will try to pressure other members of the Security Council in order to get an unanimous vote in the Council in favour of Judge Greenwood. In the alternative, they will settle for a 9-0 vote ( with 6 abstentions). This way the Council can force the hand of the General Assembly.

    I do not see Italy, Sweden and Ukraine voting in favor of the Indian Judge. As a result, i think together with the P5 solidarity, the UK is guaranteed 8 votes. I dont see that changing anytime soon.

    Historically, when the General Assembly and the Security Council fail to agree on a candidate, the Council follows the Assembly. However, this is the first time a candidate from the P5 has been caught in the cross hairs. In effect, two traditions are being pitted together. I doubt the P5 is prepared to acquiese to a precedent that disturbs its right to an automatic seat.

    Naomi Burke says

    November 14, 2017

    Maybe the GA and SC should organize a rapid fire buzzer round quiz on international law for the two candidates and the winner gets elected?! On a more serious note, I find it a shame that more weight isn't given to actual knowledge of international law in the selection process.

    Mark says

    November 15, 2017

    I totally agree with Naomi. The lack of absence of emphasis on legal knowledge, however, is not new. Judge André Gros wrote a scathing critique of the politicization of the process in his article “La Cour internationale de Justice 1946-1986: Les reflexions d’un juge”. Politicization has prevented some of the most suitable candidates for the ICJ from being elected to it.

    Anon says

    November 15, 2017

    As an aside, has anyone else noticed that this is a non-issue in the UK press? Except for a note in The Guardian at the beginning of the process, it seems that only the Indian (and Pakistani) press have thought this was a matter worth reporting on.

    Kriangsak Kittichaisaree says

    November 16, 2017

    https://thewire.in/147528/india-icj-dalveer-bhandari/

    The above news report should be of interest to followers of this blog.
    The ICC election is the only one which involves open-forum interviews with all candidates (in that case, by human rights NGOs). Otherwise, bilateral lobbying snd vote swapping (the so-called bilateral support arrangements) are the name of the game.

    zhai says

    November 20, 2017

    It seems that Judge Greenwood has withdrawn from the election exercise. First time that UK have no judge at ICJ.

    www.un.org/press/en/2017/ga11978.doc.htm

    Kriangsak Kittichaisaree says

    November 21, 2017

    What caused this dramatic turn of events? Some preliminary assessments in the corridors of the UN as follows.

    The successful Lebanese candidate for the ICJ started his campaign several years ago, exchanging supports with other States running for elections to other forums. As the Permanent Rep to the UN in NY, he could campaign/lobby all year round. Lebanon has the traditional support of the OIC, the Arab League, and the francophone States. Indeed, he had been endorsed as the OIC candidate for the ICJ. Although Lebanon also had a candidate for ITLOS at the June 2017 election, Judge Akl of Lebanon had been serving at ITLOS non-stop for 21 years and was 81 years of age. Lebanon did not push for his official endorsement by any group of States as its candidate for ITLOS, but lobbied hard and exchanged votes for him as much as it could.

    India campaigned hard for its candidate for ITLOS and decided to defer the official nomination of its candidate for the ICJ by its National Group until after the successful election of its ITLOS candidate in June 2017. When you do not have an official candidate for the ICJ, you just cannot campaign for him or her, including by exchanging supports with other States. When India announced its ICJ candidate, not many votes were left to exchange support with other States since most votes had already swapped to support India’s ITLOS candidate.
    That was why the Lebanese candidate beat the Indian for ‘the Asian seat’.

    UK v. India, ending with the win for the latter: 3 theories at least
    - The UK usually exchanges reciprocal support with other States on the basis of the merit/qualifications of the candidates/candidacy of these other States. Since Judge Greenwood’s seat was traditionally Western European and Other States’ and the UK is a P5 (with the tacit understanding in the UN since the late 1970s, it seemed, that all P5 members were entitled to have their nationals as judges of the ICJ), the UK might not have exchanged many votes in support for Greenwood as it should have.
    - The UN reform movement, of which India is a leading member, would like to see changes, esp. in the rise of the UNGA and an overhaul of the UNSC and its authority. While the French ICJ candidate could rely on the solid, united support of francophone States, the Commonwealth members were split – some supported the Indian candidate, while others supported the UK’s.
    - It has been noted that after the UK had engaged in the Falklands/Malvinas War, the UK lost its seat in the ILC for the first time, and that after the USA had engaged in an armed conflict with Iraq, the USA lost its seat in the ILC, also for the first time. The UNGA resolution to seek an advisory opinion from the ICJ on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 could have given a negative impression on the UK in the eyes of certain developing States.

    NB: The above is not my view – I have merely summed up what I have heard. Up to you to think whether any or all of theories is/are correct.

    Arman Sarvarian says

    November 21, 2017

    I wonder whether the Nuclear Disarmament Cases were a factor, particularly against the backdrop of the developments in the First Committee leading to the Treaty on the Prohibition of Nuclear Weapons 2017. Nationals of both of the Respondents in the Cases with Members of the Court present on those panels ended up facing one another in the runoff, while others were elected.