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The 1996 Elections to the International Court of Justice: New Tendencies in the Post-Cold War Era?

Published online by Cambridge University Press:  17 January 2008

Niels Blokker  and
Sam Muller
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Extract

It has rightly been observed that every society “faces a delicate problem when it has to determine how its judges are appointed, especially the members of the senior courts and tribunals”. For, while it is usually recognised that judges should be independent, at the same time those in power may prefer judges who are not too independent, in the sense that they more or less share the general political orientation of government.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 47 , Issue 1 , January 1998 , pp. 211 - 223
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. Rosenne, S., The World Court—What It Is and How It Works (5th rev. edn, 1995), p.53.Google Scholar

2. Ibid.

3. Schermers, H. G. and Blokker, N. M., International Institutional Law (3rd edn, 1995), pp 557–559.Google Scholar

4. ICJ Statute, Art.4(1) (reproduced in Kapteyn, P. J. G. et al. , International Organization and Integration (1980), Vol. 1.A.4.a).Google Scholar

5. Idem. Art.4(2). Founded in 1899, the PCA keeps a list of the names of individuals who can be called upon to act as arbitrators, to resolve disputes between States (including an organisation of States) as well as disputes between States and private parties. As at 1 Sept 1997, 85 States are represented in the PCA, and the names of 268 individuals are included in the list of potential arbitrators.

6. Idem. Art. 5(1). The time “given” by the Secretary-General is not considered to be binding. It is common practice that nominations are received later, and it has happened that a nomination was made four weeks after the “given time”, and that the candidate was eventually elected (see Rosenne, S., “Elections of Members of the International Court of Justice: Late Nominations and Withdrawals of Candidacies” (1976) 70 AJ.I.L. 546).Google Scholar

7. ICJ Statute, Art.5(2).

8. Idem. Art.6. See for examples of the functioning of a national group McWhinney, E., “The International Court as Constitutional Court and the Blurring of the Arbitral/Judicial Processes”, in Muller, S. and Mijs, W. (Eds), The Flame Rekindled. New Hopes for International Arbitration, Special Issue 1993 of the Leiden J. Int. L. (Vol. 6. No.2). pp.81–89 at pp.82–84; S. Schwebel in idem. pp. 378–379.Google Scholar

9. Laid down in ICJ Statute, Art. 2.

10. McWhinney, E., Judicial Settlement of International Disputes (1991).p.96.CrossRefGoogle Scholar

11. Idem. pp. 97–98.

12. Examples are the nominations of McDougal (US) in 1978 and Riphagen (the Netherlands) in 1987. McDougal obtained 8 votes in the General Assembly and 1 vote in the Security Council, Baxter (the other American candidate) 103 votes in the Assembly and 9 in the Council (UN Docs A/33/PV.40, p.751 and S/FV.2093, p.1).Google ScholarRiphagen obtained 26 votes in the General Assembly (less than any of the other 8 candidates), and no vote in the Security Council (UN Docs A/42/PV.64, p.61 and S/PV.2760/Corr.l, p.1).Google Scholar

13. Rosenne, , op. cit. supra n.1, at p.63.Google Scholar

14. McWhinney, , op. cit. supra n.10, at pp.99–100.Google Scholar His point of view is criticised by Schwebel, , op. cit. supra n.8, at pp.377–379.Google Scholar

15. Art.65 of the 1958 Constitution, as revised in 1993. See on this Art Renoux, Th. S. and Villiers, M. de, Code Constitutionnel commenté et annoté (1994), pp.502–513 and 1126–1130.Google Scholar

16. Five of the courts (magistrats du siège), one member of the Prosecuting Attorney (magistrat du parquet).

17. One appointed by the président de la République, one by the president of the National Assembly arid one by the president of the Senate.

18. See for details Renoux and Villiers, op. cit. supra n.15. at pp.1129–1130.Google Scholar

19. Rosenne, S., Law and Practice of the ICJ (1985), pp.177–182.Google ScholarSee also Singh, N., The Role and Record of the ICJ (1989), pp.349–351.Google Scholar

20. Art39. European Convention on Human Rights. For the new Court after the coming into force of Protocol 11, the procedure is more or less similar nominations by the High Contracting Party and election by the Parliamentary Assembly with a majority of votes. See Art.22 of Protocol 11. See also Valtkos, N., “Quebjuges pour la prochaine Cour curopéenne des droits de I'homme?”, in Liber Amicorum Marc-André Eissen (1995), pp.415–433. For the Commission on Human Rights, which win cease to exist upon the entry into force of Protocol 11, matters are exactly the other way around Here, the Committee of Ministers elects, from a list of names drawn up by the Parliamentary Assembly (Art.21 of the European Convention).Google Scholar

21. Art. 167 EC. Although it has rightly been observed that “this system would seem to allow for political bias”, it is also widely recognised “that in practice the people who have been appointed have gained their position on merit rather than on the acceptability of their views to their Government, although this is hard to verify” (Weatherill, S. and Beaumont, P., EC Law (2nd edn, 1995), pp.164–165). In the case of the appointment of one of the present judges, the Belgian judge Wathelet, public criticism has been voiced in view of his political background (Wathelet has been a minister for a number of yean). See written question P–2529/95 by Jaak Vandemeulebroucke of the European Parliament to the Council (1996) O.J. C56/24.Google Scholar

22. Art.53, American Convention on Human Rights (ACHR), reproduced (1970) 9 I.L.M. 673et seq.Google ScholarSee also Arts.7–9, Statute of the Inter-American Court, reproduced (1980) 19 I.L.M. 1458et seq.Google Scholar

23. Whereby it is added explicitly that a member may nominate a person of every OAS nationality and that at least one nominee has to be of another nationality than that of the nominating State (Art.53 ACHR).

24. ICJ Statute, Art.9 (emphasis added). On this requirement, see Rosenne, , op. cit. supra n.19, at pp.166–169Google Scholar and, more recently, Shahabuddeen, M.. “The World Court at the Turn of the Century”, in Muller, A S., Raič, D. and Thuránszky, J. M. (Eds), The International Court of Justice: Its Future Role after Fifty Years (1997), pp.9–16.Google Scholar

25. Although it is usually not required that each member State “has” a judge of its nationality on the Court, in practice this is almost always the case. An exception is the judge of the European Court of Human Rights elected in respect of Liechtenstein, who is a Canadian national.

26. ICJ Statute, Art.8.

27. See Memorandum by the Secretary-General on the procedure for the election of judges in the General Assembly and the Security Council, UN Doc.A/51/333–S/1996/722, p.4 (para.15).Google Scholar

28. Ibid.

29. Current technological developments and the widespread use of mobile telephones have proved to be small leaks in the dam that separates the two electing organs. Although it must be said that, in earlier days, whispering did much of the same (see e.g. Spender, J., Ambassador's Wife (1968)Google Scholar, quoted in Eyffinger, A., The International Court of Justice 1946–1996 (1996), p.156).Google Scholar Due to the different size of the two electing organs, a ballot in the Security Council is completed much earlier than one in the General Assembly. The Security Council agreed that, after the ballot papers of the first ballot were collected, “the ballots will not be counted until it has been verified that the ballot papers in the General Assembly have been collected” (UN Doc.S/PV.3709, p.3).Google Scholar

30. ICJ Statute, Art.10(1).

31. Idem, Art.10(2).

32. Idem, Art.11. An elaborate back-up provision is included in idem. Art. 12 should a third meeting fail to produce the required number of judges. In such a case a joint conference of six members, three appointed by the General Assembly and three by the Security Council, is assigned to the job of electing judges. Should the joint conference fail, the members of the Court who have already been elected take over and proceed to fill the vacant teats by selection from among those candidates who have obtained votes either in the General Assembly or in the Security Council. This provision has, however, never been used. Citing the example of a deadlock during the occasional election in 1956 after the death of Judge Hsu Mo, the UN Office of Legal Affairs indicated that “a joint conference is only optional (the word ‘may’ is used)”, and concluded: “It seems more practical that the electoral organs should proceed to further ‘meetings’.” See (1984) UN Juridical Yearbook 175–176.Google Scholar

33. See Memorandum, loc. cit. supra n.27: “Balloting will continue in the same meeting until five candidates have obtained the required majority.” See also Rosenne, , op. cit. supra n.19, at pp.176–177Google Scholar; Conforti, B., The Law and Practice of the United Nations (1996), p.123.Google Scholar In the same legal opinion cited above, it was stated that the word “meeting” referred to continuous balloting and not to one single ballot (op. cit. supra n.32, at pp. 173–174).Google Scholar

34. See General Assembly Meetings Coverage. UN Doc.GA/9159, p.4.Google Scholar

35. UN Doc.S/PV.3709.

36. See Memorandum, op. cit. supra n.27, at p 3 (para.9).Google ScholarSee also Rosenne, , op. cit. supra n.19, at p.178.Google Scholar On an interpretative issue related to the term “absolute majority”, see Hogan, W. N., “The Ammoun case and the Election of Judges to the ICJ” (1965) 59 A J.I.L. 908–911.Google ScholarSee also (1984) UN Juridical Yearbook 174.Google Scholar

37. This includes all the 185 UN member States together with Nauru and Switzerland, which are parties to the Statute but not members of the UN (see UNG A Res.264 of 8 Oct 1948).

38. See Memorandum, op. cit. supra n.27, at p.3 (paras.9–10).Google Scholar

39. UN Doc.A/51/334–S/1996/723.

40. See Rosenne, , op. cit. supra n.6, at pp.543–549.Google Scholar

41. UN Doc. A/51/334/Rev.1–S/1996/723/Rev.1, Annex.

42. Idem, p.3.

43. Lee, E. G. and McWhtaney, E., “The 1987 Elections to the International Court of Justice” (1987) Can.Y.B.I.L. 379, 384Google Scholar; McWhinney, E. and April, S.. “The 1990 Triennial Elections to the International Court of Justice and the 1989 Casual Election” (1990) Can.Y.B.I.L. 403, 410.Google Scholar

44. UN Doc.GA/9159, p.5Google Scholar (voting in the General Assembly), and UN Doc.S/PV.3709. p.3 (voting in the Security Council).Google Scholar

45. See UN Doc.A/51/334/Rev.1–S/1996/723/Rev.1 of 31 Oct 1996. The curricula vitae of the candidates are circulated by the Secretary-General before the elections (see UN Doc A/51/335–S/1996/724 and Corr.1).

46. An invalid ballot paper is produced when votes are cast for more than one member or when an extra name is added to the ballot paper.

47. GAOR 48th session. 51st meeting (10 Nov. 1993). UN Doc.A/48/PV.51 (12 Nov. 1993).

48. With, respectively, 163, 152 and 147 votes (ibid).

49. For Koroma (ibid).

50. With, respectively, 120 and 111 votes (ibid).

51. See UN Doc.S/PV.3309 (1993).Google Scholar

52. The President of the Security Council informed the members that “Upon comparison of the lists of the General Assembly and the Security Council, we see that different candidates have been elected. As the balloting in the Security Council and the General Assembly has yielded different results, the Security Council will have to proceed to a third meeting on this item” (UN Doc.S/PV.3310, p.5).Google Scholar Similarly, the President of the General Assembly informed his colleagues that because only four candidates received an absolute majority in both organs, “it will be necessary to hold a second meeting to fill the remaining vacancy” (UN Doc.A/48/PV.51. p.6).Google Scholar

53. See Records of the 2093rd meeting of the Security Council, held on 31 Oct. 1978, UN Doc.S/PV/2093 (1978) To top it all. it is interesting to note that after the first round in the General Assembly, the representative of Sri Lanka pointed out that some of the ballot papers did not contain the name of the Sri Lankan candidate. Jayewardane. The Under Secretary-General for Political and General Assembly Affairs subsequently admitted that a mechanical error had been made and all delegations were asked to re-check whether their ballot papers contained all the names, which were then read out by the Assembly's President (GAOR 33rd session. 40th plenary meeting. UN Doc.A/33/PV.40 (1978), p.752).Google Scholar

54. With two candidates from the US.

55. A fourth candidate, Razafindralambo from Madagascar, withdrew his candidacy after the third ballot round (UN Doc.A/33/PV.40. p.753)Google Scholar

56. There were 150 ballot papers in 1978 and the required majority was 77 Sette Camara (Brazil), Baxter (US). Morozov (USSR) and El-Erian (Egypt) obtained that majority in the first round. See UN Doc.A/33/PV.40. p.752.Google Scholar

57. Idem. p.753.

58. Only exceptionally one ballot suffices in both organs for regular elections of ICJ judges: this happened e.g. in 1984. See UN Doc.A/39/PV.53.

59. UN DOC.A/42/PV.64. p.61.Google Scholar

60. UN DOC.A/33/PV.40. p.751 (two US candidates. Baxter and McDougal).Google Scholar

61. UN Doc.A/PV.1790. p.1 (two US candidates. Dillard and Bnggs).Google Scholar

62. See on the development of this custom Rosenne. op. cit. supra n.1. at pp 56–62.Google Scholar

63. In the near future these figures are likely to change, but probably only as a result of Central European countries becoming a member of the Western group.

64. Rosenne, , op. cit. supra n.1.at pp.61–62.Google Scholar

65. See McWhinney, E.. The International Court of Justice and the Western Tradition of International Law (1987). p.79.Google Scholar

66. Some factors explaining this Caribbean success are the following. Brazil was perhaps considered too ambitious politically since it also presented at the same UN session a candidate for election to the Security Council, who was elected. In addition, the Muslim name of the Guyanese candidate may have helped to gain additional votes in the General Assembly. See McWhinney, . op. cit. supra n.10. at pp. 105–106.Google Scholar

67. McWhinney, and April, op. cit. supra n.43. at pp.406. 409.Google Scholar

68. Rosenne, . op. cit. supra n.1, at p.59.Google Scholar