November 2017 Monthly Forecast

SECURITY COUNCIL AND WIDER UN STRUCTURE

International Court of Justice

Expected Council Action

In November, the Security Council and General Assembly will elect five judges to the International Court of Justice (ICJ). The judges will each serve a term of nine years commencing on 6 February 2018.

Background 

The ICJ consists of 15 judges elected to nine-year terms by the General Assembly and the Council. Five seats come up for election every three years. There is no bar on consecutive terms.

National groups represented on the Permanent Court of Arbitration nominate candidates. When making nominations, members of each national group are recommended to consult their highest national court, national legal faculties, and national schools of law. No group may nominate more than four persons. The names of candidates are then communicated by the national group to the Secretary-General to prepare a list of all persons thus nominated.

Although there is no formal requirement for geographical distribution, article 9 of the ICJ Statute requires representation of the “main forms of civilization and of the principal legal systems of the world”. In practice, the Court’s composition reflects that of the Security Council with each of the P5 always having a judge on the bench. Currently, the distribution is as follows: African States, three; Latin American and the Caribbean States, two; Asian States, three; Western European and Other States, five; and Eastern European States, two. The five judges whose terms are to expire are nationals of Brazil, France, India, Somalia and the UK.

Candidates

In this election, six candidates are contesting five positions. Five of the candidates are current members of the ICJ: Ronny Abraham (France), the incumbent president of the Court; Abdulqawi Ahmed Yusuf (Somalia), the incumbent vice-president; Antônio Augusto Cançado Trindade (Brazil); Christopher Greenwood (UK); and Dalveer Bhandari (India). The sixth candidate is Nawaf Salam, currently the permanent representative of Lebanon to the UN.

Election Process

Article 8 of the ICJ Statute states that the General Assembly and Security Council shall proceed independently of one another to elect the members of the Court in a secret ballot. Candidates who obtain an absolute majority of votes (i.e. a majority of all electors, whether or not they vote or are allowed to vote) in both the General Assembly and the Council are elected. A candidate therefore must obtain 97 votes in the former and eight votes in the latter. In the Council vote, there is no distinction between permanent and non-permanent members.

Each elector may vote for five candidates on the first ballot. If the number of candidates obtaining an absolute majority is fewer than five on the first ballot, a second ballot for the remaining positions will be held, and balloting will continue until five candidates have obtained the required majority. If more than the required number of candidates obtain an absolute majority on the same ballot in either organ, a new vote on all the candidates will be held. In the event that the five candidates elected by one organ are not the same as those elected by the other, both will proceed (independently) to new balloting to fill the unresolved seats. This process will continue for three meetings, after which, if any positions are still not filled, the Council and the General Assembly may decide to convene a conference of six members (three from each) to recommend a candidate for acceptance by the General Assembly and Council.

According to article 2 of the ICJ Statute, members of the Court are to be elected “regardless of their nationality, from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juris-consults of recognized competence in international law”. No two nationals from the same state can hold office at the same time, and once elected, a judge is a delegate neither of the government of his or her own country nor of any other state.

Results are usually achieved quickly in the Council, but balloting in the General Assembly can take much longer. In the last regular elections held on 6 November 2014, the fifth vacancy remained open after seven rounds of voting in the General Assembly and four rounds of voting in the Security Council, as Patrick Lipton Robinson (Jamaica) consistently garnered the absolute majority required in the General Assembly while the Council selected Susana Ruiz Cerutti (Argentina). The following day, seven rounds of simultaneous voting failed to produce agreement to fill the remaining seat. Finally, on 11 November, Argentina announced the withdrawal of Cerutti’s candidacy for the sake of “strengthening regional unity” in Latin America and the Caribbean, and Robinson was elected on 17 November by the Security Council and the General Assembly to fill the last remaining seat.

Council Dynamics

Permanent members of the Council have no legal entitlement to representation on the ICJ. However, judges from the P5 are usually present on the Court. This practice favours the re-election of Abraham (France) and Greenwood (UK). Regional considerations are also likely to play a role, posing a challenge for candidates from the same geographical region. Based on this, it may be that Cançado Trindade (Brazil) and Yusuf (Somalia) are seen as running uncontested for the Latin America and Caribbean and Africa vacancies respectively, while Bhandari (India) and Salam (Lebanon) are running against each other for the Asia vacancy. Nevertheless, these political and geographical considerations are not necessarily determinative. 

UN Documents on the International Court of Justice 

Security Council Letters
11 November 2014 S/2014/808 This was a letter from Argentina communicating the withdrawal of Susana Ruiz Cerutti (Argentina) as a candidate for election as a judge of the ICJ.