03 Nov Will the ICJ Have a U.S.-Style Nomination Fight? (We Can Only Hope)
I’ve only met Professor Christopher Greenwood of the Department of Law of the London School of Economics once, but I have long been an admirer of his work. He is a prolific and interesting scholar, as well as a leading practitioner of public international law. Greenwood’s credentials for the ICJ are impeccable (check them out here). But he is facing flak at home due to his legal advice, given to the chief UK lawyer during the run-up to the Iraq War, that no second United Nations Security Council Resolution was needed to invade Iraq.
Needless to say, it would be a huge mistake for the UK to pull Professor Greenwood’s nomination (or pending nomination) simply because he expressed a legal opinion that was in the minority. Indeed, the ICJ desperately needs members like Greenwood who hold legal opinions that (at least sometimes) departs from the often monolithic public international law mainstream. It would be refreshing to have a respected, intelligent, and thoughtful dissenter on the ICJ, and Greenwood certainly has the potential to be such a dissenter in at least some important cases.
Moreover, it would actually be interesting if the “nomination” fight goes to the General Assembly and Security Council. As far as I know, there has never been an open, public fight over a nominee to the ICJ. Frankly, the ICJ would benefit from such a fight, because it would be evidence that states actually care about the substantive future of the institution and think of its members are more than just recipients of political plums and vessels of national prestige. Will there be such a fight? I doubt it, but we can always hope.
You could argue that there has been an even more of a fight in the history of the ICJ. After Judge Sir Percy Spender, by his casting vote as President of the Court, had decided the immensely controversial South West Africa Cases (1966), the General Assembly declined to so much as elect a judge of the same nationality to succeed him (see Aznar Gómez, in Zimmermann/Tomuschat/Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (2006), at 213, note 57; Elias, in Max Planck Institute for Comparative and International Public Law (ed.), Judicial Settlement of International Disputes. An International Symposium (1974), at 26-7). Some delegates even expressed their surprise that a candidate of the same nationality (Sir Kenneth Bailey) had been nominated.
That clearly is something quite different from any open, public fight over the merits of a specific appointee, but I should think that, if anything, this beats any such discussion, at least for acrimony.
I just don’t think it’s going to happen. This is basically just one MP from North Ireland.