November 2005 Monthly Forecast

Posted 28 October 2005
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Election of Five Judges of the International Court of Justice

On 07 November, the Security Council and the General Assembly will elect five new judges to fill vacancies on the 15-member International Court of Justice (ICJ). The Statute of the ICJ, in article 8, provides that the “General Assembly and the Security Council shall proceed independently of one another to elect the members of the Court”. The simultaneous elections are intended to limit the possibility of the outcome of a vote in one organ influencing the vote in the other.

In this contested election, there are eight candidates for the five positions. The candidates are: Abdelfattah Amor (Tunisia), Mohamed Bennouna (Morocco), Thomas Buergenthal (US), Julio D. González Campos (Spain), Kenneth Keith (New Zealand), Seidou Adamou Mazou (Niger), Bernardo Sepúlveda Amor (Mexico), and Leonid Skotnikov (Russian Federation). 

Election Process
All seats on the Court are for nine-year terms. No two nationals of the same state can be elected to the Court. Under the ICJ Statute (article 10) those candidates who obtain an absolute majority of votes in both the General Assembly and in the Council are elected. The statute also provides that the vote in the Security Council shall be taken without any distinction between permanent and non-permanent members of the Council, which means that the veto has no effect on the outcome of the vote.

If the number of candidates obtaining an absolute majority is less than five on the first ballot, a second ballot will be held and balloting will continue until five candidates have obtained the required majority. This procedure applies in both the General Assembly and the Security Council. In the event the five candidates elected in one organ are not the same elected in the other organ, both organs will proceed to new balloting to fill the remaining seats. This process will continue for three meetings, after which if all vacant positions are still not filled, the Council and the General Assembly may decide to convene a conference of six members (three from each organ) to recommend a candidate.

In choosing the judges to serve on the ICJ, the members of both the Council and the General Assembly will consider not only the qualifications of the candidates, but also whether they are from countries that have an interest in the cases pending before the Court. Member states also will consider whether any of the candidates have been involved in advocating on behalf of issues or disputes before the Court, or issues that are likely to be considered by the Court in the very near future.  In addition, under article 9, the ICJ Statute requires that, in each election, the electors should ensure the representation of the world’s “main forms of civilization and of the principal legal systems” in the body of the Court as a whole.

Political Issues
Apart from the Statute’s legal requirements, member states will inevitably take political considerations into account in voting. Historically, permanent members of the Council, although having no legal entitlement to permanent representation on the Court, have always been elected. In this regard, the election of the US and Russian candidates is very likely. As in other UN elections, regional considerations also play a role. This is likely to favour the Mexican candidate as there is only one candidate from Latin America. The three candidates from Africa and the two candidates from the Western Europe and Others Group would thus compete for the two remaining seats.  Precedent suggests that one will be elected from each group.

Background on the International Court
The ICJ is one of the four principal organs of the United Nations-as it currently operates these are the General Assembly, the Security Council, the Economic and Social Council, and the International Court of Justice. All UN member states are party to the Statute of the ICJ, which is an annex to the UN Charter.  States may consent to take a dispute between them to the ICJ, and in doing so consent to be bound by the Court’s decision. In the event that one state party fails to abide by the Court’s decision, the other state party may have recourse to the Security Council. Under the UN Charter, the Council may then make recommendations or decide upon measures to give effect to the Court’s decision if it deems this necessary. Consent may be given either on an ad hoc basis or generically pursuant to a declaration made under the compulsory jurisdiction procedure in the Statute (article 36).

In addition to this binding form of jurisdiction, the Council or the General Assembly may request the ICJ to give an advisory opinion on any legal issue. The General Assembly may also authorize other organs and specialized UN agencies to request advisory opinions of the Court. The advisory opinions of the ICJ have, over the years, helped to guide both the Council and the General Assembly in dealing with legal issues falling within their respective agendas.

Some Relevant and Recent Cases
ICJ advisory opinions have played a role in two current issues before the Council: the status of the territory of Western Sahara; and the wall being built by Israel in occupied Palestinian Territory.

In the case of Western Sahara, responding to a request made by the General Assembly, the ICJ on 16 October 1975 issued an advisory opinion which found no “territorial sovereignty” that would preclude “application of General Assembly resolution 1514(XV) in the decolonisation of Western Sahara, and in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.” Resolving the issue of Morocco’s territorial claim versus the right of the Saharawi people of Western Sahara to self-determination has so far proven to be intractable for the Council.

More recently, the ICJ on 09 July 2004 gave an advisory opinion pursuant to a General Assembly resolution adopted on 08 December 2003 at its Tenth Emergency Special Session. The issue concerned “the legal consequences arising from the construction of the wall being built by Israel, the Occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem.” In its advisory opinion, given by a divided Court, the ICJ concluded that “the construction of the wall, and its associated regime, are contrary to international law.”

Unlike the advisory opinions, which are not enforceable, the ICJ’s opinions on contentious cases, or disputes between two states consenting to the Court’s jurisdiction, are binding and enforceable. Contentious cases currently before the Court include various types of disputes: territorial disputes (Costa Rica v. Nicaragua and Romania v. Ukraine); criminal proceedings in France (Rep. of the Congo v. France); and armed activities on the territory of the Democratic Republic of Congo (Dem. Rep. of the Congo v. Rwanda).

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