Last week the United Nations General Assembly and Security Council conducted elections to elect judges to the International Court of Justice (ICJ) (see UN Press Releases here and here). Under Articles 4 and 8 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of General Assembly and the Security Council which are to meet separately. Five judges are elected to the Court every 3 years with each judge being elected to a 9 year term. The usual procedure for the elections is that both the GA and the SC meet separately, but concurrently. Once five judges have obtained an absolute majority in one organ the President of that organ will notify the President of the other organ of the names that candidate. In the election held last week, four candidates received an absolute majority in each organ and were elected to the Court. Three of those were judges were reelected to the Court, namely: President Hisashi Owada (Japan), Vice President Peter Tomka (Slovakia) and Xue Hanqin (China) who was elected to the Court for the first time last year (see previous post here). In addition, one new judge Professor Giorgio Gaja (Italy) was elected. Professor Gaja is a member of the International Law Commission and was special rapporteur on the recently adopted articles on the responsibility of international organizations (see posts here and here). When he takes up his position, Professor Gaja will effectively replace Judge Bruno Simma on the Court. These four judges were elected in the first round of balloting in the General Assembly and the Security Council.
Unusually, the GA and SC were unable to fill the fifth vacancy on the Court as both organs failed to agree on a candidate for that vacancy. That vacancy was effectively reserved for an African candidate and was contested by Judge Abdul Koroma (Sierra Leone) who is the most senior judge at the ICJ, having already served on the Court for 18 years, and Judge Julia Sebutinde (Uganda) who is the Presiding Judge in the Trial Chamber of the Special Court for Sierra Leone hearing the Charles Taylor case. Judge Koroma obtained a majority in each of the five rounds of balloting held in the Security Council. However, though the General Assembly had seven rounds of balloting, Judge Koroma failed to obtain a majority in that organ and it was Judge Sebutinde who obtained a majority in five of those rounds. In the last four rounds of balloting in the GA the votes were extremely close with there being a difference of no more than four votes (out of 193) between the two candidates in each of those rounds. In fact in the 7th round, Judge Sebutinde only just obtained an absolute majority of votes (97) and Judge Koroma obtained just one vote less (96).
So what happens next? Both organs decided to adjourn and to continue the voting on a date to be announced later (see UN Press Releases here and here). However, the Statute of the ICJ appears to suggest an alternative course of action in the case of disagreement between the two electing organs. Article 12(1) of the ICJ Statute provides that:
“If, after the third meeting, one or more seats still remain unfilled, 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.”
The procedure is similar to the procedure in some national bicameral legislative organs where there is lack of agreement among the two organs.There have been one previous case where the Assembly and the Council have not agreed on candidates for the ICJ and also one case with respect to the Permanent Court of International Justice. In the PCIJ case in 1921, the organs of the League of Nations resorted to the joint conference. In the previous situation in the ICJ, in 1956, voting was adjourned for many months in the GA and when resumed the GA and the SC were able to agree on a common candidate.
These precedents are discussed in a 1984 opinion of the UN’s Office of Legal Affairs which analyses the legal issues which arise in cases where there is a deadlock between the GA and the SC with regard to elections to the ICJ. As the opinion notes, Article 12(1) provides that a joint conference may be formed. Therefore, it is not mandatory to resort to the joint conference. Indeed, the opinion states that:
“should a deadlock occur, a joint conference should not automatically be resorted to. It seems more practical that the electoral organs should proceed to further “meetings”.”
Since the appointment of a joint conference would mean a transfer of power from the organs of the UN to this select group it is not surprising that the GA and the SC have agreed with the Office of Legal Affairs. Also as the opinion notes, some twists would occur in the voting procedure in the Security Council were a joint conference to be resorted to. The Statute is explicit in requiring an absolute majority of both organs in the case of elections to the ICJ. Unusually this means that only 8 votes (and not 9 as required or other SC decisions) are needed in the SC and there are no vetoes. However, there is no explicit statement about the votes needed to request a joint conference. The OLA suggests that 9 votes would be requested for this (but again with no veto).
What if a joint conference is resorted to and that joint conference is unable to agree on a candidate? It is the judges of the ICJ that will fill the vacant seat under Art. 12(3) of the Statute! I doubt that it will get to that.