Uganda’s Julia Sebutinde Elected to the International Court of Justice

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Yesterday the United Nations General Assembly and the Security Council elected Julia Sebutinde to be a Judge at the International Court of Justice (see UN press release). Readers may recall from an earlier post that the Security Council and General Assembly elected four judges to the ICJ last month but most unusually failed to agree on the fifth judge to be elected. The ICJ Statute requires that candidates obtain an absolute majority in both the Security Council and the General Assembly. After several rounds of voting Judge Abdul Koroma (Sierra Leone), who is the currently the longest serving judge at the ICJ, consistently obtained a majority in the Security Council but Judge Julia Sebutinde consistently got more votes in the General Assembly. As I reported in my previous post, the Statute provides a procedure that may be used to resolve this deadlock. However, both organs chose to postpone voting till a later date and yesterday Judge Sebutinde again won in the General Assembly but this time also won in the Security Council. Judge Sebutinde got 97 votes in the General Assembly to Judge Koroma’s 93 and she obtained 9 votes in the Security Council to Judge Koroma’s 6.

Judge Sebutinde was the candidate endorsed by the African Union, and her country Uganda had expected that she would receive the support of African countries. Indeed, it has been reported that Uganda and Sierra Leone had an agreement that Sierra Leone would withdraw the candidature of Judge Koroma. Sierra Leone did not do this and Judge Koroma proved to be a popular candidate when the elections came round.

Judge Sebutinde is third woman elected to the ICJ in the space of just 18 months (here and here), which is great news, especially as there had only been one female judge prior to this in the entire history of the ICJ and PCIJ (apart from a couple of female ad hoc judges). Judge Sebutinde is currently a Judge at the Special Court for Sierra Leone where she was Presiding Judge in the trial of former Liberian President Charles Taylor. Before this, she was a Judge in the Ugandan High Court.

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André de Hoogh says

December 14, 2011

Dapo Akande notes: "The ICJ Statute requires that candidates obtain an absolute majority in both the Security Council and the General Assembly." However, art. 10 of the ICJ Statute requires an "absolute majority of votes", which is not the same as saying an absolute majority of possible votes. The practice of the GA and SC on election of judges to the ICJ results from a misinterpretation of article 10, as that provision by mentioning an 'absolute' majority intended to prevent a plurality or 'first past the post' result. Hence, if three candidates were up for one post, a candidate would need an absolute majority of votes, meaning more than 50% of the votes (i.e. a 'simple' majority), rather than the candidate with the most votes being considered elected. Cf. Schermers and Blokker, International Institutional Law, Fourth Revised Edition (I don't have the new edition yet), paras. 818 and 821 (with further references to Rudzinski and Hogan).

Dapo Akande says

December 15, 2011

Andre. Many thank for the comment. Do I understand you to mean that in calculating an absolute majority what we should be concerned with is NOT the absolute majority of the membership (which in the case of the GA is currently 97 out of 193 members) but rather a simple majority of votes actually cast. If you're right then where only 185 states vote in the GA then obtaining only 93 votes would suffice. The practice of the UN has been to require the former (an absolute majority of the membership)and not the latter (an absolute majority of votes cast). I think that the UN practice is right. The UN's Office of Legal Affairs considered this question in the opinion I referred to in my previous post on the ICJ Elections (see here at p. 174). The Office of Legal Affairs points out the practice is in line with the intention expressed in the drafting of the Statute when the drafting conference endorsed the view that : "it was necessary to retain 'absolute' in front of 'majority', since the required majority was one half of the whole membership plus one".

Also, the view that only an absolute majority of votes cast is required is drawn, as you indicate, from the wording of Article 10 of the ICJ Statute which says "absolute majority of votes". But note that Art. 12 which also requires an absolute majority does not say "of votes". It just says absolute majority. Also, in Article 12 we see that the intention behind the words "absolute majority" (at least in that provision) cannot have been to prevent a plurality or first past the post. This is because the procedure stated in Art. 12 only applies where there will be one candidate for each place that needs to be filled. So in such a scenario it is impossible to have first past the post anyway and the words absolute majority is clearly intended to require an absolute majority of the membership. Given the similarity in wording (the use of the words "absoute majority") in both Arts 10 and 12, it seems likely that they were intended to have the same meaning.

André de Hoogh says

December 23, 2011

Dapo: though I take your point on art. 12, that provision is rather awkward in the sense that it speaks of an absolute majority in the context of a six member joint conference. It does make sense perhaps to require an absolute majority of the membership of that conference (considering there will be only six members all in all). Indeed, the record of the preparatory works referred to indicate that the intention was to make sure that the three members from one (General Assembly) or the other (Security Council) would not be in a position to overrule the members of the other organ (which would be possible if the vote were not calculated by reference to the membership).
However, and notwithstanding that very interesting link to the Office of Legal Affair's memorandum, the mention in art. 12 of "absolute majority" cannot be read into art. 10, precisely because the latter adds "of votes". In any way, when I considered this issue first I believe I read the piece by Rudzinski, who traces the developments concerned and (I think) persuasively established that this was a question of misinterpretation. Over and above that, the record of the preparatory works referred to in that memorandum relates to a discussion of what later became art. 12 rather than the formulation of what is now art. 10.