September 2010 Monthly Forecast

THEMATIC ISSUES

International Court of Justice Election

Expected Council Action
The Security Council and the General Assembly will meet on 9 September to hold elections for the vacant seat created by the resignation of Judge Thomas Buergenthal (US) from the ICJ. (The date of the election was decided by the Council in resolution 1926 of 2 June.) The elected judge will occupy the seat for the remainder of Buergenthal’s term, until 5 February 2015.

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. In June, however, the US informed the UN Office of Legal Affairs that Joan E. Donoghue had been nominated by its national group. While no UN members have a legal entitlement to representation at the International Court of Justice (ICJ), in recent times the court has always included a judge from each of the P5 countries. (In a recent, similar election on 29 June resulting from the resignation of the Chinese Judge Shi Jiuying, Xue Hanqin, also a Chinese national and the only nominated candidate, was elected.) It seems unlikely that there will be candidates other than Donoghue.

Background
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 intergovernmental organisations to request advisory opinions. The Council or the General Assembly may request the ICJ to give an advisory opinion on any legal issue. The General Assembly may also authorise other UN organs or agencies to request advisory opinions from the ICJ.

Election Process
Article 14 of the ICJ Statute provides that:
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 4 provides that members of the Court shall be elected from a list of persons nominated by the national groups in the Permanent Court of Arbitration (PCA), (members of the PCA from the same country constitute a national group) or in the case of UN member states not represented in the PCA, by national groups appointed specifically for this purpose. Article 5 provides that the Secretary-General invite national groups to nominate candidates at least three months before the date of the election.

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 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.

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.

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.

Key Recent Developments
On 27 May the Secretary-General informed the Council in a note that he had received a letter dated 29 April from the ICJ president containing the letter from Buergenthal regarding his intention to resign from the Court effective 6 September 2010. Buergenthal was first elected to the ICJ on 2 March 2000 when he was the only nominated candidate to fill the vacancy created by the resignation of the American judge Stephen Schwebel. He was re-elected on 6 February 2006 for a regular nine-year term of office.

In accordance with Article 14 of the Statute, the Council met on 2 June to fix the date of the election to fill the vacancy after Buergenthal. It adopted resolution 1926 which set 9 September as the day for the Council and the General Assembly to hold the election.

UN Documents

Selected Security Council Resolution

  • S/RES/1926 (2 June 2010) was the resolution fixing the date for the election.

Others

  • S/2010/255 (27 May 2010) was the note from the Secretary-General informing the Council of the vacancy in the ICJ.
  • A/64/808-S/2010/298 (8 June 2010) set out the procedure for ICJ elections in connection with the resignation of Judge Shi Jiuyong.

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