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The 1981 Occasional Elections to fill two Vacancies on the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Shabtai Rosenne
Shabtai Rosenne*
Affiliation:
American Society of International Law, Institute of International Law
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Information
American Journal of International Law , Volume 75 , Issue 2 , April 1981 , pp. 349 - 361
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Copyright © by The American Society of International Law

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References

1 International Court of Justice communiqués 80/9 and 80/10, Sept. 29 and Oct. 6, 1980. And see the tributes by the President of the Court (Sir Humphrey Waldock) opening the oral proceedings in the WHO Agreement with Egypt case (ICJ Doc. CR.80/4, at 6). For the circumstances in which Judge Baxter came to be nominated, see the obituary notice by Oscar Schachter in this/ourraa/, 74 AJIL 890, 891 (1980).

2 UN Doc. A/BUR/35/1, para. 9 (1980).

3 Article 5, paragraph 1 of the Statute reads: 1. At least three months before the date of the election, the Secretary-General of the United Nations shall address a written request to the members of the Permanent Court of Arbitration belonging to the states which are parties to the present Statute, and to the members of the national groups appointed under Article 4, paragraph 2, inviting them to undertake, within a given time, by national groups, the nomination of persons in a position to accept the duties of a member of the Court. Article 14 provides: 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.

4 League of Nations Doc. A.26.1929.V; and for changes in the list, Docs. A.59.1929.V and A.61.1929.V(mimeo).

5 Records of the 10th (Ordinary) Session of the League Assembly, Plenary Meetings, League Of Nations O.J., Spec. Supp. 75, at 126, 450 (Doc. A.57.1929.V). At this distance of time it is impossible to establish what, if any, were the underlying political factors influencing that decision, but it will be noted that the two vacancies each related to members of the Permanent Court having the nationality of permanent members of the Council of the League of Nations.

6 Hudson, , The Eighth Year of the Permanent Court of International Justice, 24 AJIL 20, 38-39 (1930).Google Scholar

7 Hudson, The Election of Members of the Permanent Court of International Justice, id. at 718, 725.

8 M. Hudson, The permanent court of international justice, 1920-1942, at 249 (1943).

9 Institut Für Ausländisches Öffentliches Recht And Völkerrecht, Statut Et Règlement De La Cour Permanente De Justice Internationale: Eléments D'interprétation 60 (ed. Schenk von Stauffenberg, 1934).

10 See M. Hudson, supra note 8, at 140.

11 16 League of nations O.J. 1203 (1935).

12 17 id. at 125(1936).

13 Id. at 539. The Italian delegate did not attend any of the committee's meetings. See next note and Minutes of the First Committee, League Of Nations O.J., Spec. Supp. 156, at 78 (1936).

14 17 league of nations O.J. 566 (Doc. C.245.1936.V). On May 11 the Italian delegation announced that it was leaving Geneva and would not take part in any further meetings.

15 Records of the 16th (Ordinary) Session of the Assembly, pt. II, Plenary Meetings, League Of Nations O.J., Spec. Supp. 151, at 52 (1936).

16 Minutes of the First Committee, supra note 13, at 76.

17 Records of the 17th (Ordinary) Session of the Assembly, Plenary Meetings, League OF Nations O.J., Spec. Supp. 155, at 50 (1930).

18 Minutes of the First Committee, supra note 13, at 22-24, 28.

19 Records of the 17th (Ordinary) Session, supra note 17, at 105-06, 110, 130.

20 Note in this respect the proceedings in the 1,236th meeting of the Security Council on Aug. 10, 1965 and Resolution 208 (1965), regarding the date of the election to fill the vacancy caused by the death of Judge Badawi.

21 UN Doc. S/14246, to be published in 35 UN SCOR, Supp. (Oct.-Dec. 1980).

22 The Draft Resolution S/14253 was prepared in what is now the customary manner, in informal consultations of the Security Council, and was placed before the formal meeting of the Security Council in an anonymous way.

23 35 UN GAOR, Ann. (Agenda Item 15), UN Doc. A/35/244 (1980). For the item as adopted on the agenda itself, correctly subdivided into two sub-subitems, see UN Doc. A/35/252/ Add.3 (1980).

24 Furthermore, the date itself is not without interest as regards the Baxter vacancy—5 days before the inauguration of President Reagan.

25 35 UN GAOR, Ann. (Agenda Item 15), UN Doc. A/35/708-S/14283 (1980).

26 S. Rosenne, Procedure In The International Court 24 (1981).

27 UN Doc. A/35/PV.99, at 71 (prov.) (1980).

28 35 UN GAOR, Ann. (Agenda Item 15), UN Doc. A/35/786-S/14311 (1980). For the curricula vitae, see id., UN Doc. A/35/787-S/14312. Before the election, Schachter, while sensible of the honor done to him by the national group of Argentina in proposing his candidature, regretted that at the time he was not in a position to accept the duties of a member of the Court. Id., UN Doc. A/35/786/Add.l. This left Schwebel as the sole candidate for this vacancy.

29 Id., UN Doc. A/35/788-S/14313. For curricula vitae, see id., UN Doc. A/35/789-S/14314. For the announcemer by the Government of Iraq of its support for the candidature of Yasseen, see id., UN Doc. A/35/790-S/14321. For the withdrawals of the candidatures of Razafindralambo, Rault, and Bilge, see id., UN Doc. A/35/788-S/14313, and Adds. 1-3.

30 35 UN GAOR, Ann. (Agenda Item 97), UN Doc. A/35/792 (1981).

31 UN Doc. A/35/708-S/14283, supra note 25, para. 12.

32 UN Doc. A/35/PV.100, at 3 (prov.) (1981).

33 UN Docs. A/520/Rev.l3 (1979); S/96/Rev.6 (1974). For the San Francisco Conference, see above all the report of Subcomm. IV/l/B and of Comm. IV/1, and the formal report of the Fourth Commission. 13 UNCIO Docs. 537, 540 and 381, 389 (1945). The cautious view of the implication of Article 19 of the Charter on the calculation of the absolute majority required in the General Assembly which we have expressed elsewhere may be interpreted in the light of the broad practice established by the General Assembly. 1 S. ROSENNE, the law and Practice of the international court 179 (1965). For a protest by South Africa, that the rejection of its credentials by the General Assembly deprives it of its vote in the elections of members of the Court, see UN Doc. A/35/802-S/14395 (March 9, 1981).

34 Such a statement by the President of the Security Council is new, the earlier formula having been more general, namely, that “the candidates who received the required majority in the General Assembly and the Security Council are elected” (omitting the words “I declare“). On the controversy regarding which President “declares” the candidate elected, see United Nations, Repertoire Of The Practice Of The Security Council, 1946-1951, at 222-23 (UN Doc. ST/PSCA/1, 1954), and my book cited in the previous note, at p. 175.

35 Cf. Saunders, , The 1971 Elections to the International Law Commission: A Comment, 66 AJIL 356 (1972).CrossRefGoogle Scholar

36 Institut De Droit InternationaL, 32 Annuaire 474 (1952 II).

37 S. Rosenne, The Composition of the Court, in 1 The Future Of The International Court Of Justice 377, 387 (Gross ed. 1976).

38 See International Court of Justice communiqué 81/2, Feb. 26, 1981.