International Court of Justice
Expected Council Action
On 27 April, the Council and the General Assembly will both hold elections for the vacant position on the International Court of Justice (ICJ), following the resignation of Judge Awn Shawkat Al-Khasawneh (Jordan) on 31 December 2011. (Council resolution 2034 fixed the date of the election.) The new judge will occupy the seat until 5 February 2018, the remainder of Al-Khasawneh’s term.
Article 8 of the Statute of the ICJ provides that “the General Assembly and the Security Council shall proceed independently of one another to elect the members of the Court.”
The process is intended to limit the possibility that the vote’s outcome in one organ might influence the vote in the other.
Background on the ICJ
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. (For more background information on the court, see our October 2011 Monthly Forecast.)
The Secretariat is scheduled to publish the list of candidates on 2 April. Until then, the list is considered confidential. However, the names of at least two nominees, Florentino P. Feliciano (Philippines) and Dalveer Bhandari (India), have been made public.
Prior to the election, the Secretariat is expected to issue the list of candidates and their curricula vitae, and a document laying out the election procedure.
Article 14 of the Statute of the Court states 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 5 also provides that at least three months before the date of the election, the Secretary-General shall 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 of 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.)
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 in both bodies.
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. Articles 11 and 12 of the ICJ Statute 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 both bodies.
Key Recent Developments
On 10 November 2011, the Council—independently from, but concurrently with, the General Assembly—elected Giorgio Gaja (Italy), Hisashi Owada (Japan), Peter Tomka (Slovakia) and Xue Hanqin (China) to the ICJ for nine-year terms, beginning on 6 February 2012. Both bodies failed to elect a fifth judge, as Abdul G. Koroma (Sierra Leone) received the required majority in the Council, while Julia Sebutinde (Uganda) received the required majority in the General Assembly. On 22 November, they convened again, yet the Council repeatedly elected Koroma and the General Assembly continued to choose Sebutinde.
On 13 December 2011, the Council and General Assembly convened on the matter for the third time. During the concurrent sessions, Sebutinde obtained the required majority in both bodies and was elected for the fifth and final vacant position on the ICJ.
Security Council Resolution
Security Council Meetings on the Election of ICJ Judges