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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.
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.
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.