‘Yes, they can …’: PCA national groups of States that are not members of the United Nations and the nomination of ICJ judges

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As of today, membership in the United Nations, and with it the status as a contracting party of the Statute of the ICJ as per Art. 93 (1) UN Charter, is, unlike in the first decades of the existence of the organization, almost universal. Yet, there continue to be entities, and notably Palestine and Kosovo, that have not (yet) been able to become members of the organization given the lack of consensus within the international community as to their statehood, and further given the admission process set out in Art. 4 UN Charter and in particular the role of the permanent members of the Security Council in the process provided for in Art. 4 (2) UN Charter.

At the same time both, Palestine and Kosovo, have, as discussed earlier here and here, become members of the 1907 Hague Convention for the Pacific Settlement of International Disputes (‘1907 Convention’) (see here) and have thereby at least partially buttressed their respective claim of statehood . What is more is that they have in the same vein both made use of their right arising under Art. 44 of the 1907 Convention to nominate members of what is commonly referred to as their respective ‘National Group’ of the PCA (see for the current list of all members of the PCA here).

This raises the ensuing question whether such national groups of parties to the 1907 Convention that are not however at the same time parties to the Statute of the ICJ may then also participate in the nomination of candidates running for an ICJ judgeship – an issue that unfortunately has so far hardly be discussed, and if at all only briefly, here, here and here.

It is Arts. 4 and 5 ICJ Statute that regulate the (co-)nomination of candidates for ICJ judgeships, and, as is well-known, Art. 4 (1) ICJ Statute generally entitles national groups of the PCA to nominate such candidates “in accordance with the following provisions”. This nomination process stands in contrast to the actual elections of the judges, where it is only parties to the Statute of the ICJ, i.e. all member States of the United Nations and eventually those other States that have otherwise become State parties of the ICJ Statute, that by virtue of Art. 4 ICJ Statute elect the judges by way of the two-cameral system provided for in Art. 10 ICJ Statute.

Art. 4 (2) ICJ Statute further specifically addresses the situation where a State is a member of the United Nations but not of the PCA with the ensuing effect that no national group of the PCA exists for that very State. In turn, the reverse situation that a State has become a party of the 1907 Convention, but is not (yet) a member of the United Nations, is not addressed in such detailed manner in the Court’s Statute.

It is true that Art 4 ICJ Statute merely provides for the obligation of the Secretary General (viz its Office of Legal Affairs) to in due course invite all national groups of the PCA representing contracting parties of the ICJ Statute to send in nominations for ICJ judgeships, which is normally done by means of a letter addressed to the national group under cover of a letter to the government (i.e. the Permanent representatives of their permanent Missions to the United Nations). This obligation therefore does not extend to Palestine and Kosovo that, while being contracting parties of the 1907 Hague Convention (and thus having PCA national groups) are not contracting parties of the ICJ Statute, even if, like in the case of Palestine, they are observer States of the United Nations.

At the same time, however, Art. 5 (2) ICJ Statute is unequivocal in stating that each national group (‘chaque groupe’ in the equally authentic French text of Art. 5) may nominate a maximum of four candidates without limiting this right to national groups that have been so invited by the Secretary General. The same holds true for Art. 4 (1) ICJ Statute which also generally refers to the right of ‘national groups of the Permanent Court of Arbitration’ without again requiring their home States to be parties of the ICJ Statute. Otherwise it would have been natural to in Art. 4 (1) limit this right to those national groups of the PCA, the home States of which are also cumulatively parties to the ICJ Statute.

As a matter of fact, Art. 4 (3) ICJ Statute specifically addresses the participation of States that are not (yet) members of the United Nations in the election process, but does not set up conditions for the participation of their PCA national groups in the prior nomination process. Finally, Art. 6 ICJ Statute, which regulates the process prior to the actual nomination, once again speaks of ‘each national group’/ ‘chaque groupe national’ in an all-encompassing manner.

This is further confirmed e contrario by Art. 36 (4) lit. a) Rome Statute, which in its subparagraph (ii) refers to the “procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court”, but which at the same time, and unlike Arts. 4 and 5 ICJ Statute, specifically limits the ability to nominate candidates for election to the International Criminal Court to State parties of the Rome Statute.

On the whole it thus seems that even where an entity is neither a member of the United Nations nor otherwise a contracting party of the ICJ Statute, but is a contracting party of the 1907 Convention, its national group may indeed participate in the nomination process. This seems to be also confirmed by both, the drafting history of the parallel provisions of the Statute of the PCJI (on which the relevant provisions of the ICJ Statute are based), as well as by the subsequent practice of the League of Nations arising thereunder. Notably during the drafting it was emphasized that one advantage of the nomination procedure was that it linked the PCIJ with the PCA and provided for their co-existence (cf. e.g., M. de Lapradelle’s remarks to the Committee of Jurists in LN Doc. V. 1920.2, p. 148; J, Golden, National Groups and the Nomination of Judges of the International Court of Justice: A Preliminary Report, 9 Int’l L. 333 (337) (1975)). What is more is that during the era of the League even invitations were sent out to national groups of State parties of the 1907 Convention although they had withdrawn from the League (M. Hudson, The Permanent Court of International Justice 1920 – 1942 (1943), p. 242), and in 1921 the Secretary General of the League seems to have sent a letter to both, the members of the League and the contracting parties of the 1899/1907 Conventions with regard to the issue of possible nominations for PCIJ judgeships (JO LoN 1921, p. 246; cf. also B. Schenk von Stauffenberg, Statut et Règlement de la Cour Permanente de Justice Internationale (1934), p. 28).

While there is no public information available as to whether nominations were received by the PCA national groups of either Palestine or Kosovo, or both for the election to fill the vacancy caused by the passing away of the late Judge Antônio Cançado Trindade (but cf. as to the nominations for the regular 2020 elections cf. UN Doc A/75/129–S/2020/615), both, the national group of Kosovo, as well as the national group of the State of Palestine could in light of the above considerations have done so, and could have thus added yet another, albeit obviously small, step towards a recognition of the statehood of their respective nominating entities. It therefore also remains to be seen whether both (or one of those) national groups will exercise that right when the next regular election for members of the Court will come up, and whether the Secretary General will accept such nominations, if submitted, and duly reflect them in the list of eventual (co)-nominations.

Finally, as to procedure, while in line with consistent and longstanding practice in the application of Arts. 4 and 5 ICJ Statute such nominations are normally transmitted to the Secretary General of the United Nations via the respective permanent mission of the home State of the PCA National Group, no such requirement is contained in either the ICJ Statute nor indeed anywhere else. Besides, since in the case of Kosovo no such permanent mission exists, any such formal requirement would make the exercise of the right of its national group to (co-)nominate candidates illusionary, and should for that reason alone be rejected

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Nicolas Boeglin says

December 17, 2022

Dear Professor Zimmermann

Many thanks for this extremely interesting post.

In the case of Palestine, its statehood is more clear since the decision taken by UNGA on Nov 2012, 29; as well as after the ICC decision of February 2021. I refer you to my conclusions at this post (in French, sorry):

"Le fait qu'une juridiction internationale telle que la CPI, pour la première fois dans l'histoire du droit international public, se prononce sur le statut de la Palestine en tant qu'État, et accepte d'examiner ce qui se passe à l'intérieur de son territoire, donne à cette décision une portée non seulement juridique, mais aussi hautement symbolique et pleine d'espoir".

Source: https://www.ridh.org/news/palestina-se-despeja-el-camino-para-la-justicia-penal-internacional/?lang=fr

In a comment to a post in EJIL-Talk of 2018, I indicated the fact that US objected Palestinian´s statedhood only for some international treaties and not all instruments ratified by Palestine. See my comments at:

https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/

By the way, you or our colleagues at EJIL-Talk have some news, or any idea on the stage of the procedure between Palestine and US since ICJ´s order of Nov 2018 ?

https://www.icj-cij.org/en/case/176

It is for me quite new to observe a contentious case registered at ICJ with no news since more that 3 years indicated on ICJ´s website.

Yours sincerely

Nicolas Boeglin