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International Court of Justice Elections: A Report on the First Fifty Years
Published online by Cambridge University Press: 09 March 2016
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- Type
- Special Report /Rapport spécial
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 34 , 1996 , pp. 303 - 312
- Copyright
- Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1996
Footnotes
*
B.S.Sc., LL.B. The author, who is currently working with the United Nations Human Rights Field Operation in Rwanda, would like to thank Dr. Roy S. Lee, of the UN Office of Legal Affairs, and Professors Maurice Copithorne and Karin Mickelson for their guidance and constructive advice, and Allyson Baker and Alison Flynn for extensive help in proofreading.
References
1 See Rosenne, Sh., Documents on the International Court of Justice 823–67 (1st bilingual edition, Dordrecht: Martinus Nijhoff, 1991)Google Scholar; Copithorne, M.D., “The Permanent Court of Arbitration and the Election of Members of the International Court of Justice” (1978) 16 CYIL 315Google Scholar; McWhinney, E., “Law, Politics and ‘Regionalism’ in the Nomination and Election of World Court Judges” (1986) 13 Syr. J. Int’l L. & Com. 1Google Scholar; Rosenne, Sh., The World Court: What It Is and How It Works 53–80 (5th ed., Dordrecht: Martinus Nijhoff, 1995)Google Scholar; Gross, L., “The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order” (1971) 65 AJIL 253CrossRefGoogle Scholar; (1954) 45(1) Annuaire de l’Institut de Droit International 407–553; (1954) 45(2) Annuaire de l’Institut de Droit International 61–107; Schwebel, S., “The Docket and Decision-making Process of the International Court of Justice” (1989) 13 Suffolk Transnat’l. L.J. 543Google Scholar; Read, J., “The World Court and the Years to Come” (1964) 2 CYIL 164Google Scholar; Schwelb, E., “The Process of Amending the Statute of the International Court of Justice” (1970) 64 AJIL 880CrossRefGoogle Scholar; Padelford, N., “The Composition of the International Court of Justice: Background and Practice” in Deutsch, K. and Hoffmann, S. (eds.), The Relevance of International Law 219 (Cambridge: Schenkman, 1968)Google Scholar; Hambro, E., “Should the Membership of the International Court of Justice be Enlarged?” 19 Z. ausi. ôff. R. u. VR. 140Google Scholar; Rudzinski, A.W., “Election Procedure in the United Nations” (1959) 53 AJIL 81CrossRefGoogle Scholar; Sørensen, M., Manual of Public International Law 689–701 (New York: St. Martin’s Press, 1968)CrossRefGoogle Scholar; Wallace, R., International Law, A Student Introduction 241–44 (London: Sweet & Maxwell 1986)Google Scholar; and Shaw, M.N., International Law 520–24 (Cambridge: Grotius Publications, 1986).Google Scholar For an account of elections to the ICJ’s precursor, the Permanent Court of International Justice (“PCIJ”), see Bustamante, A.J., The World Court (New York: MacMillan, 1925),Google Scholar noting in Chapter 8 at 116 that “one of the most successful points of the Advisory Committee’s work is the election procedure — a very difficult and contentious subject.” See also Hudson, M.O., The Permanent Court of International Justice (1920-1942) (New York: MacMillan, 1943), ch. 12 at 241Google Scholar: “The provisions of the Statute which deal with the election of members of the Court represent the greatest triumph achieved in 1920.”
2 There has been one general election in which 15 members were elected; 17 periodic — “triennial,” also called “partial” or “regular” — elections (see Brownlie, I., Principles of Public International Law (4th ed., Oxford: Clarendon 1990)Google Scholar held every three years in which five members were elected each time; and 19 “casual vacancy” elections. The latter are also called “occasional elections”; in one instance at the PCIJ in which two casual vacancy elections were held at the same time, “special” elections were held to fill vacancies created by a resignation or death at the Court, in which one member was elected each time.
3 See Art. 3 of the Statute of the International Court of Justice [Statute], which adds (in para. 2): “A person who for the purposes of membership in the Court could be regarded as a national of more than one state shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.”
4 Statute, Art 8.
5 Ibid., Art. 2.
6 Ibid., Art. 9.
7 Ibid., Art. 5. See also McWhinney, E., “Law, Politics and ‘Regionalism’ in the Nomination and Election of World Court Judges” (1986) 13 Syr. J. Int’l. L. & Com. 1 at 3.Google Scholar For a discussion of the relationship of the Permanent Court of Arbitration to the ICJ election process, see M. Copithorne, supra note 1 at 315.
8 Statute, Art. 1 o, para. 1. Note that the consistent practice of the UN has been to interpret the words “absolute majority” as meaning a majority of all electors, whether or not they vote. Therefore, the current (Nov. 1996) majority required in the Security Council is 8 (of 15) and in the General Assembly 94 (of 185 + Nauru and Switzerland = 187). A. W. Rudzinski, supra note 1 at 99, has written that this procedure is “erroneous,” given that, for election, the Statute requires a candidate to obtain an absolute majority of votes in each organ. At least, however, this procedure eliminates debate over the number of those present and the number of ballots cast. See document A/36/301 joint symbol S/14501 for an example of the secretary-general’s memorandum that outlines the voting procedure. Note also that under Art. 19 of the UN Charter, a member of the UN loses its right to vote for ICJ members if it is “in arrears in the payment of its financial contributions to the Organization.” In 1981 and 1987, eight and four states respectively were not permitted to vote for this reason. See Rosenne, Sh., Documente on the ICJ, supra note 1 at 855, 863.Google ScholarIn Feb. 1996, thirty-nine member states were not permitted to vote.
9 Statute, Art. 10
10 Ibid., Art 12. This procedure has not been used in electing members to the ICJ. Only the casual vacancy election of Dec. 19, 1956 and Jan. 11, 1957, required more than three meetings, and it was decided to attempt a fourth meeting, which was successful. Note that a joint conference was held once (successfully) in the first general PCIJ election in 1921. See M. O. Hudson, supra note 1 at 245.
11 Oct. 22, 1948; Oct. 1, 1957; Nov. 16, 1960; Oct. 21, 1963; Nov. 2, 3, 1966; and Nov. 15, 1990.
12 Nov. 11, 1987 and Nov. 10, 1993.
13 The first election arguably took four meetings (there were four “comparisons of lists”), although the exact number is open to debate because of the disagreement over the definition of the word “meeting” in Art. 11 of the Statute. The election of Dec. 19, 1956 and Jan. 11, 1957 also took four meetings. Note that in the 1930 election to the PCIJ, six “comparisons of lists” (equivalent to today’s meetings) were required, and although the Statute then provided for a joint conference, it was not resorted to. The voting took place in one day. See M. O. Hudson, supra note 1 at 253.
14 While Art. 8 of the Statute states that the two organs shall proceed “independently of one another,” Professor Copithorne has noted that “in fact the results of each vote are widely known informally and undoubtedly have some degree of influence on the voting in the other body”: supra note 1 at 322. Professor Brownlie has written, supra note 2 at 718, that “[i]n practice, the Security Council and the General Assembly do not vote independendy, and more or less discreet consultation occurs.” But see Rosenne, Sh., Documents on the ICJ, supra note 1 at 859Google Scholar, where in 1981 an informal agreement was reached such that the counting of ballots in the Security Council does not begin until after the ballots have been collected in the General Assembly. This, of course, does not prevent the sharing of the results of a ballot after the ballot has taken place.
15 Notable are the elections of Oct. 22, 1948, in which the two organs combined required 15 ballots. Note also Dec. 19, 1956/Jan. 11, 1957 (22 ballots required); Nov. 2, 3, 1966 (38 ballots required); and Oct. 31, 1978 (18 ballots required). Overall, despite its smaller number of members, the Security Council has required exactly the same number of ballots as the General Assembly.
16 See A/48/PV.53 at 1, made prior to the third ballot in the General Assembly. I would also mention Professor Rosenne’s wise words on this point that one must look for the “inarticulate premise.” It is very possible that the withdrawals were made for reasons that had nothing to do with democracy in the voting process or the pre-eminence of the General Assembly.
17 Subject to non re-election of those not elected and subject to the fact that no changes in voting patterns would have resulted. It is certainly arguable that, with less Security Council influence, there would have been less incentive to always have a representative from each of the permanent members of the Council. Had the Assembly been voting alone in the Feb. 6, 1946 election, Mr. Podestà Costa (Argentina) and Sir Zafrulla Khan (India) would have been elected instead of Mr. Klaestad (Norway) and Mr. Winiarski (Poland). In the Oct. 22, 1948 election, Mr. Spiropoulos (Greece) would have been elected instead of Mr. Zoricic (Yugoslavia). In the Dec. 19, 1956/Jan. 11, 1957 election, Mr. Kuriyama (Japan) would have been elected instead of Mr. Wellington Koo (China). In the Oct. 21, 1963 election, Mr. Fouad Ammoun (Lebanon) would have been elected instead of Mr. Isaac Forster (Senegal). In all elections subsequent to 1963, those initially elected in the General Assembly have been elected to the ICJ. In addition, three of those five candidates were elected in subsequent elections: Sir Zafrulla Khan, Mr. Spiropoulos, and Mr. Fouad Ammoun.
18 M. O. Hudson, supra note 1 at 268.
19 See E. McWhinney, supra note 1 at 10.
20 Nov. 27, 1953 (India to Pakistan); Sept. 29, 1959 (El Salvador to Panama); Nov. 16, 1965 (United Arab Republic to Lebanon); Mar. 19, 1982 (Egypt to Algeria); and Nov. 10, 1993 (Poland to Hungary). Only the Nov. 27, 1953 and the March 19, 1982 elections had reasonably contentious voting. In the remaining three elections, the national group whose national was the outgoing member either did not nominate another national from the same country, or withdrew the nomination before voting (1993, Poland).
21 J. Read, supra note 1 at 169; (1953) 45(1) Annuaire Institut de Droit International 444. Judge Read noted that the re-election system “is embarrassing; and it is made doubly so by the fact that in elections at the General Assembly certain members of the United Nations have used a judicial candidate’s voting record in cases before the Court as a reason for re-electing him or rejecting him.”
22 See (1953) 45(1) Annuaire de l’Institut de Droit International 424, and (1953) 45(2) Annuaire de l’Institut de Droit International 104–5.
23 Not including nationals of the five permanent members of the Security Council, who have been elected virtually every time nominated by their national group, and not including candidates who withdrew before the first ballot. This also excludes casual vacancy elections by definition.
24 Six candidates have been elected three times: Badawi (Egypt), Bedjaoui (Algeria), Lachs (Poland), Oda (Japan), Schwebel (U.S.), and Winiarski (Poland). Of these, only one is a national of a permanent member of the Security Council, and three of the judges are currendy serving on the Court.
25 While Art. 9 states that electors should assure that the body as a whole should represent “the principal legal systems of the world,” an attempt at determining how many judges came from each “principal legal system” proved difficult. E.g., would one count Canada as representing one half each of the common law and the civil law? How many legal systems did the USSR represent? Which legal systems would Malaysia represent?
26 Supra note 1 at 269.
27 Sh. Rosenne, supra note 1 at 67.