November 2020 Monthly Forecast

SECURITY COUNCIL AND WIDER UN STRUCTURE

International Court of Justice

Expected Council Action

In November, the Security Council and the General Assembly will elect five judges to the International Court of Justice (ICJ) to commence their term on 6 February 2021.

Background

The ICJ consists of 15 judges elected to nine-year terms by the Council and the General Assembly. Five seats come up for election every three years. There is no bar on consecutive terms. According to article 2 of the ICJ Statute, the judges are “independent” and “elected regardless of their nationality”.

The statute calls for “national groups” to nominate the candidates. The Secretary-General prepares and then shares a list of all candidates with the Council and the General Assembly, per article 7 of the statute.

The statute does not have a formal requirement for the geographical distribution of the seats. Article 9, however, requests the electors to consider “that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured”. Article 3 rules out the possibility of two judges of the same nationality holding seats on the court. In practice, the court’s composition reflects that of the Council in usually featuring a judge from each of the five permanent members. There have been two exceptions: there was no Chinese judge at the ICJ from 1967 to 1985, and there has been no judge from the UK since 2018. The current regional distribution is as follows: African states, three judges; Asia-Pacific states, four; Eastern European states, two; Latin American and Caribbean states, two; and Western European and Other states, four.

The five judges whose terms are to expire are Julia Sebutinde (Uganda, representing the African states); Xue Hanqin (China, representing the Asia Pacific states); Yuji Iwasawa (Japan, also representing the Asia Pacific states); Peter Tomka (Slovakia, representing the Eastern European states); and Giorgio Gaja (Italy, representing the Western European and Other states). Twelve of the current judges are male and three are female. Since the establishment of the ICJ, four out of 108 judges have been female.

On 28 October, the Council held its annual private meeting with the president of the ICJ, Abdulqawi Ahmed Yusuf. They spoke about the relationship between the Council and the ICJ 75 years after the adoption of the UN Charter and 100 years after the adoption of the Statute of the ICJ.

Candidates

Eight candidates are contesting the five positions. Four of the candidates are current members of the ICJ: Julia Sebutinde (Uganda); Xue Hanqin (China), the incumbent vice-president; Yuji Iwasawa (Japan); and Peter Tomka (Slovakia). The other candidates are Taoheed Olufemi Elias (Nigeria), Emmanuel Ugirashebuja (Rwanda), Maja Seršić (Croatia), and Georg Nolte (Germany).

Election Process

Article 8 of the ICJ Statute states that the Council and the General Assembly “shall proceed independently of one another to elect the members of the Court”. Members of the Council therefore have a vote both in the Council and the General Assembly. Since the first election in 1946, the voting has been conducted by secret ballot in simultaneous meetings of the two organs. According to article 10, candidates who receive an absolute majority of votes in both the Council and the General Assembly are elected. Voting practice has established that “absolute majority” means “a majority of all electors, whether or not they vote or are allowed to vote”, as specified in the latest memorandum of the Secretary-General on the procedure of the election. All votes of Council members, whether cast by permanent or elected members, count equally. In order to be elected, a candidate must therefore obtain 97 votes in the General Assembly and eight votes in the Council. Balloting continues until the same five candidates have obtained an absolute majority of votes in both organs. In case more than five candidates receive an absolute majority on the same ballot in either organ, a new vote on all candidates will be held. In case fewer than five candidates obtain the required votes, the next round of voting will be held for only the remaining vacant seat(s).

During the last regular election of five judges in 2017, all six candidates received an absolute majority of votes in the Council in the first three rounds of voting, held on 9 November, triggering further rounds. The fourth round of voting resulted in all but Dalveer Bhandari (India) receiving the required votes for the five available seats. Four of the five seats were filled in that round and further voting took place between the two remaining candidates, Bhandari and Christopher Greenwood (UK). For the next six rounds of voting at the Council, Greenwood received an absolute majority. At the same time, Bhandari obtained an absolute majority of votes in the General Assembly. After the UK withdrew the candidacy of Greenwood, Bhandari was elected on 20 November 2017.

Council Dynamics

The practice of permanent Council members being represented on the ICJ may favour the re-election of Xue (China); regional considerations may put her in competition with Iwasawa from Japan. This may also pose a challenge for the three candidates from Africa (Sebutinde from Uganda, Olufemi from Nigeria and Ugirashebuja from Rwanda) and the two candidates from Eastern Europe (Tomka from Slovakia and Seršić from Croatia). Nolte from Germany may be considered as running unopposed, as he is the only candidate representing Western Europe and Other states. These practices are not necessarily determinative, however.

UN DOCUMENTS ON THE INTERNATIONAL COURT OF JUSTICE
Other
29 June 2020S/2020/619 A note by the Secretary-General containing the curricula vitae of the eight candidates for the five positions on the ICJ.
29 June 2020S/2020/618 A memorandum by the Secretary-General containing the current composition of the ICJ and the election procedure in the Council and the General Assembly.
29 June 2020S/2020/615 A note by the Secretary-General containing the names of the eight candidates for the five positions on the ICJ by national group.