Chapter 9:   RELATIONS WITH OTHER ORGANS AND ENTITIES

Section 4:   International Court of Justice

 

2017 ICJ election upends the status quo, and also weakens “joint conference” option

 

When the judges of the International Court of Justice met on 6 February 2018 to choose their President and Vice-President, it was the first time since the ICJ’s initial meeting in April 1946 that a judge from the United Kingdom was not among them.  This was the outcome of a noteworthy election which occurred, concurrently in the UN General Assembly and Security Council, between 9 and 20 November 2017.[1]

 

The International Court of Justice consists of fifteen members, no two of whom may be nationals of the same country.  Judges serve for nine years, with five judges being elected every three years, except when judges leave the Court before the expiry of their term.

 

The qualifications for judges of the Court are set out in Articles 2, 3, and 9 of the ICJ Statute.  They are to possess the qualifications for appointment to the highest judicial offices of their country, or be of recognized competence in international law.  Moreover, according to Article 9 of the Statute, “the representation of the main forms of civilization and of the principal legal systems of the world should be assured” on the Court.

 

Although judges are also to be elected “regardless of their nationality”, until the November 2017 election, the ICJ website had stated that “the Court has always included judges of the nationality of the permanent members of the Security Council”.[2]  In fact, the ICJ formerly paralleled the exact distribution of seats on the Security Council, because in addition to judges from the five permanent members, it had three judges from Africa, two from Asia-Pacific, two from the Latin American-Caribbean region, one from Eastern Europe, and two from Western European and other States. 

 

This informal understanding with regard to the Court’s composition was upended in the 2017 elections.  Earlier, it had been expected that Dalveer Bhandari of India would easily be re-elected to the seat, considered as reserved for the Asia-Pacific region, which he had held since 2012.  However, when the Secretary-General’s list of nominated candidates was published on 20 July 2017, it included the name of a second candidate from that region, Nawaf Salam, Lebanon’s UN Ambassador.

 

On 9 November 2017, the first day of balloting, Salam received the requisite number of votes in both the Assembly and the Council.  He was thus elected to the Court, along with three other candidates from the regions, respectively, of Africa, Latin America-Caribbean, and Western European and other States.  For the fifth seat, Bhandari received the necessary majority in the Assembly but not in the Council, whereas Christopher Greenwood of the United Kingdom, who had been a judge of the ICJ since 2009, attained sufficient support in the Council but not in the Assembly. 

 

As required by the Statute, both the General Assembly and the Security Council then carried out further balloting for the fifth seat.  In the next vote in the Council, Greenwood slipped from 14 to nine votes, while Bhandari received six.  However, in the Assembly, Bhandari received the required majority. 

 

In additional rounds of voting, Greenwood first continued to receive nine votes in the Council, but then narrowly maintained an absolute majority there when his tally dropped to eight.  Bhandari’s vote in the Council fell to five where it remained, while he continued to hold onto an absolute majority in the Assembly, through to 13 November.  At that point, a pause occurred in the voting while the Assembly and Council Presidents, as well as countries supporting either candidate, sought a way out of the impasse.

 

It was as the stalemate was developing that the United Kingdom began to focus on a little known provision in the Court Statute.  Article 12(1) provides that if a third meeting in both principal UN organs has failed to fill one or more seats,

 

“a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council, for the purpose of choosing by the vote of an absolute majority one name for each seat still vacant, to submit to the General Assembly and the Security Council for their respective acceptance” (our emphases).[3]

 

Once it became known that the United Kingdom was considering proposing that the Security Council request the convening of a joint conference, the reaction among UN Member States ranged from wary support to indignation. 

 

One factor which gave rise to hesitancy over the option of a joint conference was the lack of relevant precedents.  In the UN’s history, during a number of ICJ elections, the General Assembly and Security Council failed to agree on the same candidate in the first three meetings.  However, in all such cases, rather than resorting to Article 12(1), the two organs simply conducted further voting until finally one candidate received the majority in both.  The sole precedent for convoking a joint conference related not to the ICJ, but rather to its predecessor, the Permanent Court of International Justice (PCIJ), which had an identical provision in its Statute.  That case, which occurred in 1921, did not involve the election of judges, but rather, deputy judges.  What also distinguished the 1921 case was that it was not the Council, but the League of Nations’ Assembly which initiated the joint conference. 

 

Another factor mitigating against the joint conference option was the risk that it would upset the balance between the General Assembly and the Security Council.  Pursuant to Article 12(1), it is only necessary for one of the two organs to make the request, in order for a joint conference to be convoked.  Therefore, if the Council took such a decision, it would automatically and unilaterally freeze the balloting process in the Assembly, even if the Assembly members wanted to continue voting. 

 

As a practical matter, it seemed implausible that the voting pattern in the General Assembly would shift to give Greenwood the majority.  Rather, Bhandari – who, in the last Assembly balloting before the pause received 121 out of the total 192 votes cast – was likely to gain additional votes should the balloting continue.  Consequently, it would be difficult to conceive that the Assembly members would accept any decision by a joint conference that would invalidate their strong numerical support for Bhandari. 

 

Resistance from the Assembly would be even more likely because convening a joint conference would create the possibility that neither Bhandari nor Greenwood might be recommended through that mechanism.  In fact, the 1921 PCIJ precedent was a “lose-lose” outcome for the two original candidates – the Chilean who received the required majority in the Assembly, and the Belgian who did so in the Council.  The joint conference in that case bypassed each of them, and instead recommended a jurist from Norway previously not nominated, who was then elected.[4]  Had a similar outcome resulted from convoking a joint conference in 2017, this would have annulled the voting majority not merely in the Assembly or in the Council, but in both organs.  As a consequence, not one, but two experienced ICJ judges would be forced off the Court, which might open the UN to broad criticism. 

 

For the United Kingdom strategically, there was doubt as to whether the earlier nine votes for Greenwood in the Security Council would translate into the nine procedural votes necessary for the Council to decide to invoke Article 12(1).  On the contrary, it was probable that at least some of the Council members voting for Greenwood would not support the more controversial step of requesting a joint conference.  Once Greenwood’s vote in the Council dropped to eight, a procedural motion to request a joint conference was even less likely to carry.  Moreover, even if a joint conference were constituted and then decided upon a candidate, there would be no guarantee that both the Assembly and the Council would accept that candidate, which is the final step required by Article 12(1).

 

In the end, given these and other factors, the United Kingdom did not formally propose to the Security Council that it request a joint conference.  Rather, in a letter dated 20 November 2017 (S/2017/975), the United Kingdom representative  stated

 

“The current deadlock is unlikely to be broken by further rounds of voting.  We have therefore consulted our candidate, Sir Christopher Greenwood, who has confirmed that his candidature for re-election to the International Court of Justice should be withdrawn.”

 

In his letter, the representative nonetheless referred to the option of a joint conference.  He contended that the fact that the mechanism had never been used for an ICJ election “does not mean that it should not be used when the need arises.”  He added that

 

“It is the view of the United Kingdom that this election would have been an ideal opportunity to use the mechanism envisaged by the Court’s own Statute to break the current deadlock.  It is also the view of the United Kingdom, as it is of other delegations, that some thought needs to be given to this procedure before the next International Court of Justice election in order that it might be used when it is clearly needed.”

 

In this, he echoed the recommendation made in 2014 by the representative of Argentina who, after a comparable voting deadlock, conveyed the withdrawal of an Argentinian candidate for the ICJ.  In her letter (S/2014/808), the representative similarly stated that the fact that a joint conference had never been resorted to

 

“cannot serve as a valid argument for ignoring or dismissing the provisions of the Statute.  Rather, it shows the importance of making the necessary arrangements for the implementation of such mechanism should similar situations arise in the future.”

 

Undoubtedly the original impetus for including in both the PCIJ and the ICJ Statutes the option of a joint conference was to open an avenue for compromise should voting continue to be stalemated.  However, when the General Assembly has given a large majority to a candidate different from the one receiving the majority in the Council, it would be difficult to view a request by the Council for a joint conference as anything other than an attempt to bypass that majority vote in the Assembly. 

 

Furthermore, the General Assembly now has little incentive to cooperate with a joint conference at a time of deadlock, given the results of the ICJ elections in 2011, 2014 and 2017.  In each of those years, when two different candidates received an absolute majority in the Assembly and the Council, respectively, it was the candidate who prevailed in the Assembly who eventually was elected.[5]

 

It is paradoxical that in their respective 2014 and 2017 letters, Argentina and the United Kingdom made the case for resorting to a joint conference, while at the same establishing a new precedent which makes it even less likely that the Assembly would ever accept use of that mechanism.  Previously, balloting continued until a candidate finally attained a majority in both organs.  However, now Assembly has an even greater incentive to remain committed to further rounds of balloting, after two successive candidates withdrew while they still held a majority in the Council.

 

Beyond its impact on the joint conference option, the 2017 ICJ election was significant in other respects.  Some UN delegations and commentators have interpreted the loss of Greenwood’s judgeship as a “referendum” – on Greenwood himself, on the United Kingdom as a country, on the Group of Western European and Other States (WEOG), or on the Permanent Members (P5).  From the United Nations point of view, it is with respect to the WEOG and the P5 that the election seems most significant.

 

Both the WEOG and the P5 are generally seen as having disproportionate power in the UN system, and particularly on the Security Council.  The Western European and Other States, despite constituting only one-seventh of the total UN membership, hold one-third of the Council seats (France, the United Kingdom and the United States serve as permanent members, and two additional non-permanent seats are allocated to other members of that group).  Moreover, the three WEOG permanent members control most of the “penholding” for the Council’s outcome documents (see related article on this site), an arrangement which has been widely criticized by elected Council members and the broader UN membership.  Accordingly, some have viewed the strong support for Bhandari over Greenwood in the Assembly as part of an effort by some Member States to reduce the power of this regional group wherever possible in the UN system.[6] 

 

While there has been considerable focus on the fact that a judge from the United Kingdom lost his place on the ICJ, the other part of the equation is that the Asia-Pacific Group gained an additional seat on the Court.  This marks a further departure from the geographic distribution of key positions in the UN system, following upon the 2016 election for the Secretary-General, when the office went to a WEOG national rather than to a candidate from Eastern Europe, which would have been next in line had regional rotation been followed.  It remains to be seen whether in future ICJ elections, the Asia-Pacific group will be able to hold onto the judgeship it acquired in 2017, and also whether the other large regional group in the UN system – Africa – might be emboldened to try to gain an additional seat on the Court as well. 

 

In parallel, some have interpreted Greenwood’s loss in the Assembly as emblematic of many UN Member States’ wish to reduce the power of the P5.  Criticism of the permanent members has been intensifying, particularly in the period since 2014, when 16 vetoes have been cast, primarily concerning Syria, but also the Palestinian question and Ukraine (see this website’s table of vetoes).  The failure of the Russian Federation to be elected to the Human Rights Council in 2016 has been cited as evidence of the same trend.

 

Overall, the outcome of the last three full ICJ elections may signify a growing sense of empowerment in the General Assembly vis-à-vis the Security Council and its permanent members.  In this context, the 2017 ICJ elections can be seen as building on the considerable momentum generated in 2016, when the Assembly played a far more active role in the appointment process for the Secretary-General than ever before. 

 

Beyond consideration of how the 2017 ICJ election has impacted on the United Nations itself, one further question of interest is whether the nationality of judges on the ICJ makes a difference in the handing down of the Court’s decisions.  It may.  While some might question their methodology, a 2005 study by Eric A. Posner and Miguel F. P. de Figueriredo concluded that

 

“national bias has an important influence on the decision making of the ICJ.  Judges vote for their home states about 90 percent of the time.  When their home states are not involved, judges vote for states that are similar to their home states – along the dimensions of wealth, culture, and political regime.” 

 

However, Posner and de Figueriredo qualify that their findings are the evidence of statistics, and they do not suggest that biases on the Court are conscious or intentional.[7] 

 

(This update supplements pages 598-601 of the book.)

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[1] The procedure for electing the ICJ judges is found in Articles 4(3), 8, and 10-14 of the ICJ Statute, supplemented by Rules 40 and 61 of the Security Council Provisional Rules of Procedure and Rules 151 and 152 of the General Assembly.  Pursuant to Article 8 of the Statute, the judges are elected by both organs proceeding “independently” of one another (and in practice, simultaneously).  The Statute provides that in both organs, “an absolute majority of votes” is required, and according to practice, this has meant a majority of the qualified electors, whether or not they vote.  In the 15-member Security Council, the absolute majority is eight.  In addition, Article 10 of the Statute provides that the vote in the Council shall be “without any distinction between permanent and non-permanent members”, i.e., the veto does not apply.  (As part of its long history with the ICJ, it was the United Kingdom which, in 1947, submitted the first case to the Court, concerning incidents in the Corfu Channel.)

[2] This statement did not reference the fact that no judge of Chinese nationality sat on the Court from 1967 to 1985.

[3] Should the joint conference become deadlocked, paragraphs 3 and 4 of Article 12 provide for the decision to be made by the ICJ judges “who have already been elected”.

[4] Article 12(2) of the ICJ Statute provides that if the joint conference unanimously agrees, a person not included in the original list of nominees may be considered.

[5] See article  on this website on the 2014 election; see pages 600-601 in the book on the 2011 election.

[6]  In a recent article (“With UN Security Council Reform, Bigger Is Not Better”, PassBlue, 28 March 2018), Mona Khalil has suggested that among the steps that the General Assembly can take, without amending the Charter, to make the Security Council more representative and more effective, would be to adopt a new resolution modifying its 1963 resolution establishing the regional distribution of seats on the Council, to reallocate to Africa and/or Asia one of the two non-permanent WEOG seats on the Council.  

[7] “Is the International Court of Justice Biased?”, University of Chicago Journal of Legal Studies, vol. 34, June 2005.