CJICL Blog
A blog about international law, comparative law and more general contemporary developments in the field of contemporary legal thought. Blog submissions are always welcome and can be e-mailed to the blog's editors at: blog@cjicl.org.uk
Election of Judges to the International Court of Justice
Following our previous post on selection of a candidate for election to the International Court of Justice (ICJ), this post looks at the election process itself. As set out in the statute of the ICJ, five judges are elected to the Court every three years, for a nine-year term.
Regular Election Cycle
The regular election cycle takes place during the annual meeting of the General Assembly, generally in early November. The last regular election of judges to the ICJ took place in November/December 2011, and the next regular election is due to take place in November 2014. In 2011, 5 judges were elected from a list of 8 candidates. Julia Sebutinde (Uganda) and Giorgio Gaja (Italy) were newly appointed while Judge Hisashi Owada (Japan), Judge Peter Tomka (Slovakia) and Judge Xue Hanqin (China) were re-elected. Judges elected in the regular November election cycle usually take up their appointments on 6 February of the following year.
Prior to the election, the Secretary-General will have circulated a list of candidates to the General Assembly and to the Security Council, detailing the nominations received by each candidate. The statute of the Court provides that judges are elected by an absolute majority in both the General Assembly and the Security Council. According to the practice of the UN, an absolute majority is a majority of all members, whether they vote or not, that is currently 97 votes in the General Assembly (based on present UN membership of 193 States) and 8 in the Security Council. The General Assembly and the Security Council vote simultaneously but separately. If five candidates are not elected by an absolute majority in both the General Assembly and the Security Council in the first meeting, a second and, if necessary, a third meeting will be held. This was the case in 2011 where the fifth and final seat to be filled was contested between the incumbent Judge Koroma (Sierra Leone) and Julia Sebutinde (Uganda). After 8 rounds of voting in the Security Council and 11 rounds in the General Assembly, the Security Council repeatedly chose Judge Koroma and the General Assembly chose Mrs Sebutinde. Failure to agree on a common candidate after so many rounds of voting is unusual in ICJ election practice and had only happened once before, during the 1956 elections. A common candidate was eventually elected in the 1956 elections after voting was adjourned for several months. The statute of the Court provides that if a candidate fails to be elected after a third meeting, a joint conference of six members, three appointed by the General Assembly and three by the Security Council, may be formed, to chose by vote of an absolute majority a name to submit to the General Assembly and to the Security Council for acceptance. The conference procedure was not used in 2011, since a final round of voting was held on 13 December and Mrs Sebutinde received an absolute majority in both the General Assembly and the Security Council.
Special Elections
Additional elections may also be held to replace retiring members. In this case, judges take up their appointments immediately once elected and serve the remainder of the retiring member’s term. Joan Donoghue (USA) was elected in September 2010 to serve the remainder of the term of Judge Thomas Buergenthal (USA), who retired in the same month. Judge Donoghue’s term will therefore expire in February 2015. A special election was also held in April 2012 to replace Judge Al-Khasawneh (Jordan), who retired in December 2011. There were two nominees for the position and Dalveer Bhandari (India) was elected to serve the remainder of Judge Al-Khasawneh’s term until February 2018.
Regional Distribution
For the purposes of assuring representation of different regions of the world on UN bodies, the UN Member States are informally divided into 5 regional groups. These are the African Group; the Asia-Pacific Group; the Eastern European Group; the Latin American and Caribbean States Group (GRULAC); and the Western European and Other States Group (WEOG). The 15 seats at the ICJ are currently distributed amongst these groups as follows: African: 3; Asian: 3; Eastern European: 2; GRULAC: 2; and WEOG: 5. The five permanent members of the Security Council have always had a judge at the Court (with the exception of China from 1967–1985), though there is no official rule providing that this must be the case. The distribution of judges across the regional blocs follows the distribution of seats on the Security Council, but again, this distribution occurs by tradition only and is not an official rule of the UN. When the list of candidates is circulated by the Secretary General prior to the election, the candidates are listed on the ballot in alphabetical order and are not grouped according to regional bloc.
The following Members of the Court will reach the end of their terms in February 2015: Judge Bennouna (Africa), Judge Skotnikov (Eastern Europe), Vice-President Sepúlveda-Amor (GRULAC), Judge Donoghue (WEOG), and Judge Keith (WEOG). It is highly likely that Judge Donoghue (USA) and Judge Skotnikov (Russia) will be either re-elected or replaced by a fellow American and Russian judge, respectively. As a result, the only spots likely to be contested in November 2014 are those of Judge Bennouna, Judge Keith and Vice-President Sepúlveda-Amor. It has not yet been announced whether Judges Bennouna, Keith and Vice-President Sepúlveda-Amor intend to seek re-election. If these seats are contested, it is likely to be by candidates from the African Group, WEOG and GRULAC respectively.
Comments
Dear Andrew,
There is no reference to leadership traits in the ICJ statute. It simply requires that the judges are "persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law." In my experience, recognized competence in and experience of the practice of international law are the key criteria involved in the selection of ICJ judges.
Dear Naomi,
I am curious to know your opinion about the right of the ICJ members to seek re-election. Do you think that it is proper for a sitting judge to run a campaign for his/her own re-election?
Kind regards,
Z. Bars, S.J.D.
A sitting judge running a campaign for re-election raises two issues in my view: (a) whether that is a good use of their time and (b) whether the fact of re-election might have any impact on their decision making. Regarding (b), I think that is an issue more in theory than in the practice of the ICJ. ICJ judges are generally such established experts in the field that political considerations are rarely if ever a factor in decision making
As for (a), a sitting judge running a campaign is not ideal in terms of time commitments. I have no experience of the campaign process but assume it is less comprehensive for sitting judges and that it involves reminding States of the quality of a candidate rather than introducing them? The ICJ calendar is also reasonably flexible in that while judges must be present in the Hague for oral proceedings, much of the rest of their work such as reading and research can be done elsewhere. In this respect it seems possible for a sitting judge to campaign while also fulfilling all their duties at the Court.
Finally, as far as I know, campaigns are generally run by the State of nationality of the judge concerned, through their embassies and consulates, with the candidate expected to take part in certain meetings, social events etc. I wasn't sure if your question referred to the idea of a judge running the campaign themselves, as opposed to the State running the campaign?
Thanks for the answer. Conducting a campaign involves many bilateral meetings as well. And during these meetings sitting judges are vulnerable because they might be tempted to assume certain behaviour on pending cases in order to ensure votes in their favour. But if there is a ban on the re-election you would not bother about independence of the judges. At least one of the concerns would be removed.
Naomi,
I am a Global Leadership doctoral candidate from the United States. In my research, I am interested in feedback from the subject matter experts like yourself on the exploration of leadership traits and competencies, ideological beliefs that influence decision making of Transitional Reconciliation Commission (TRC) members, and the role of the ICC in the reconciliation process. In your research on the elections of the judgeship, did you find anything about leadership? How are the judges picked and what criteria is used? Are there alternative models that have been developed to seek restorative justice outside of the traditional -oriented models? I have read the Rome Statute, there is nothing that indicates leadership traits or competences for ICC judgeship appointments.
I am interested in your perspective.
Thank You for your time.