International Court of Justice
Expected Council Action
The Security Council and the General Assembly will meet on 29 June (in accordance with the Council decision in resolution 1914 fixing the date of the election) to hold elections for the vacant seat created by Judge Shi Jiuyong’s resignation from the International Court of Justice (ICJ). The new justice will occupy the seat until 5 February 2012, the remainder of Shi’s term.
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.
At press time the list of nominations had not been published by the Secretariat. While no Council members have a legal entitlement to representation on the ICJ, in recent times the court has always included judges from the P5 countries (there was no Chinese judge from 1967 to 1984). On 5 April a Chinese candidate was nominated to replace Shi. China has sought support from the larger UN membership for its candidate. It seems unlikely that there will be other candidates.
In early June the Council is also expected to meet to set a date for an election for the vacancy created by the resignation of Judge Thomas Buergenthal from the US.
The ICJ is one of the UN’s six principal organs. All UN member states are parties to the ICJ Statute, which is an annex to the UN Charter. The ICJ is the only international court of a universal character with general jurisdiction. The Court is composed of 15 judges, elected for terms of nine years in separate but simultaneous elections by the General Assembly and the Council.
The ICJ and the Council have an important relationship established by the Charter. In the event that a state fails to abide by an ICJ decision, the other party may have recourse to the Council. Under the Charter, the Council may then make recommendations or decide upon measures to give effect to the ICJ’s decision.
The ICJ also exercises advisory jurisdiction through a procedure allowing the Council (and other bodies) on any legal issue.
Article 14 of the Statute of the Court provides:
Vacancies shall be filled by the same method as that laid down for the first election, subject to the following provision: the Secretary-General shall, within one month of the occurrence of the vacancy, proceed to issue the invitations provided for in Article 5, and the date of the election shall be fixed by the Security Council.
Article 5 provides that at least three months before the date of the election, the Secretary-General address a written request to members of the Permanent Court of Arbitration (PCA) and to members of national groups, inviting them to nominate a suitable person to fill the position. (When the ICJ was established the jurists in the PCA were given the right to nominate the candidates for the ICJ and countries that were not part of the PCA constituted national groups appointed for this purpose.)
Article 15 presents the term of office:
A member of the Court elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor’s term.
Under article 10 of the ICJ statute, candidates who obtain an absolute majority (i.e. more than 50 percent) of votes in both the General Assembly and the Council are elected. A candidate therefore must obtain 97 votes in the General Assembly and eight votes in the Council. In the Council vote, there is no distinction between permanent and non-permanent members.
If no candidate receives an absolute majority on the first ballot in either the General Assembly or the Council, a second ballot will be held. Balloting continues until a candidate has obtained the required majority (this scenario is unlikely if there is just one candidate).
When a candidate has obtained the required majority in one body, the president of that body will notify the other president of the outcome, but the results are only disclosed to members of the second body after their own voting is concluded. Article 11 and 12 state that if the General Assembly and the Council do not select the same candidate, they will proceed to a second meeting and, if necessary, a third meeting, following the same procedures. If by then the position is not filled, the Council and General Assembly may decide to convene a conference of six members (three from each body) to recommend a candidate for acceptance by the General Assembly and Security Council.
Key Recent Developments
On 15 March the Secretary-General informed the Council in a note that he had received a letter dated 25 January from the ICJ president containing the letter from Shi regarding his intention to resign from the ICJ effective 28 May 2010. Shi was elected to the ICJ on 10 November 1993, and his term would have expired on 5 February 2012.
In accordance with Article 14 of the Statute, the Council met on 18 March to fix the dates of the election to fill the vacancy in the ICJ. It adopted resolution 1914, which set 29 June as the day for the Council and the General Assembly to hold the election.
The Secretary-General circulated a letter on 19 March to the permanent missions in New York asking them to invite their national groups for nominations by 30 May.
Selected Security Council Resolution