International Court of Justice
Expected Council Action
On 22 June, the Security Council and General Assembly will elect a judge to the International Court of Justice (ICJ), due to the resignation of Judge Hisashi Owada (Japan), effective 7 June.
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.
The process of putting forward candidates to the ICJ is linked to Permanent Court of Arbitration (PCA) membership. Contracting parties to The Hague Convention for the Pacific Settlement of International Disputes of 1899 (or its 1907 revision) may appoint up to four potential arbitrators as members of the PCA. To date, there are 121 contracting parties. For the purposes of ICJ elections, the ICJ Statute provides that a group of arbitrators put forward by a contracting party is considered a “national group”, and these national groups can nominate candidates to the ICJ (the Statute also provides for a parallel procedure for states not represented in the PCA to nominate candidates). The ICJ Statue recommends that when making nominations, members of each national group consult their highest national court, national legal faculties, and national schools of law. No group may nominate more than four persons. The national group then communicates the names of the candidates to the Secretary-General, who prepares a list of all persons thus nominated.
The ICJ Statute provides that vacancies on the court shall be filled using the same method as regular elections. When a vacancy occurs, the Secretary-General issues invitations for national groups to suggest nominees. Thereafter, the Council adopts a resolution deciding on the date of the election for the Council and the General Assembly. The elected judge is to commence his or her term immediately, serving for the remainder of the original term of the departing judge, in this case until 5 February 2021.
On 6 February, Owada informed the President of the Court of his resignation. The Secretary-General then sent a note to the Council on 19 February, requesting that the Council fix a date for the election of Owada’s replacement. The Council adopted resolution 2403 on 28 February, setting the date of the election for 22 June.
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”. Historically, the Court’s composition reflected that of the Security Council, with each of the P5 always having a judge on the bench. During the last elections, however, the judge nominated by the UK was not elected.
Currently, the distribution is as follows: African states, three; Latin American and Caribbean states, two; Asian states, four; Western European and other states, four; and Eastern European states, two.
When a judge resigns before the end of his or her term, it is not uncommon that only that judge’s state of nationality puts forward a candidate to fill the vacancy in response to the invitations sent by Secretary-General. In this election, that candidate is Yuji Iwasawa (Japan), a law professor at the University of Tokyo. Iwasawa is also the current chairperson of the Human Rights Committee, a body established by the International Covenant on Civil and Political Rights to monitor the implementation of the treaty.
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 (that is, 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.
Since there is only one candidate to fill the vacancy, the chance that the two bodies will elect different candidates does not exist, as it does in the case of regular elections.
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”. 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 9 November 2017, four of five vacancies were filled after five rounds of voting. The fifth vacancy remained open after Christopher Greenwood (UK) acquired the majority in the Council while Dalveer Bhandari (India) acquired the majority in the General Assembly. Five additional voting rounds on 13 November did not resolve the deadlock between the two organs. Meeting again on 20 November, the Council elected Bhandari after being informed that the UK had withdrawn Greenwood’s nomination.
UN DOCUMENTS ON THE INTERNATIONAL COURT OF JUSTICE
|Security Council Resolutions|
|31 May 2018 S/RES/2403||This resolution fixed the date for the election of a judge for the ICJ in the Council and the General Assembly.|
|Security Council Meeting Records|
|20 November 2017 S/PV.8110||This was the meeting at which the Council elected Dalveer Bhandari (India) to the ICJ after being informed that the UK had withdrawn Christopher Greenwood’s nomination.|
|19 February 2018 S/2018/133||This was a note from the Secretary-General to the President of the Security Council concerning a vacancy on the ICJ.|