29 Jul Election Season at the ICJ: Dawn of a New Era?
[Bruno Gelinas-Faucher is a PhD Candidate at the University of Cambridge and an Adjunct Lecturer at the Université de Montréal. His research focuses on the content and implementation of State Responsibility towards non-state actors.]
On 29 June, the UN Secretary-General officially launched the election season at the International Court of Justice (ICJ) by announcing the candidates running to fill the next vacancies in 2021. While ICJ elections are not usually the most exciting events, this one has already proven to be particularly interesting and might still reserve a few surprises. There are currently eight candidates, including four incumbents, hoping to be elected to one of five seats:
Elias, Taoheed Olufemi (Nigeria)
Iwasawa, Yuji (Japan)
Nolte, Georg (Germany)
Sebutinde, Julia (Uganda)
Seršić, Maja (Croatia)
Tomka, Peter (Slovakia)
Ugirashebuja, Emmanuel (Rwanda)
Xue, Hanqin (China)
This post will explore some of the most salient issues for the upcoming election. While the ICJ is the UN’s principal judicial organ, the election season offers a rare glimpse of the geopolitical forces at play behind the curtain of international justice.
The 2017 reallocation of seats
The UN Security Council and the General Assembly are tasked with the combined responsibility to elect five members of the Court (a third of its composition) every three years. In doing so, the ICJ Statute provides that the electors should seek to insure that the Court as a whole is representative “of the main forms of civilization and of the principal legal systems of the world”. This requirement is tied to the principle of equitable geographical distribution in the composition of UN organs. Following this principle, the repartition of the 15 seats at the ICJ has traditionally been allocated by regional groups in the same way as the 15 seats on the Security Council:
3 for the African Group
3 for the Asia and the Pacific Group
2 for the Eastern Europe Group
2 for the Latin American and Caribbean States Group
5 for the Western European and Other Group (WEOG)
However, the last election in 2017 broke this convention. In a spectacular runoff that lasted several rounds of voting, judge Bhandari from India succeeded in defeating Sir Christopher Greenwood from the UK. The defeat was seen as a humiliating blow for the UK which had secured the presence of a British judge on the Court since its founding in 1946. Quite apart from the issue of the UK’s diminished status, the result represented an important departure from ICJ election practice. First, it did away with the tradition that reserved a seat on the court for the five permanent members of the Security Council. Second, it was noteworthy because it resulted in a reallocation of seats amongst the regional groups. In effect, the Asian group succeeded in increasing its number at the expense of a seat previously occupied by a WEOG judge.
Against this background, the 2020 elections will be of particular interest as it will be the first chance to assess the fallouts of these important changes. The results might signal whether the 2017 episode was a one-off to the exclusive benefit of India or, perhaps, the beginning of a new trend allowing more fluidity in the general repartition of seats.
As a possible ripple effects of the 2017 result, other regional groups might be tempted to claim for themselves the extra WEOG seat transferred to Asia. This might be particularly interesting for Africa. Despite coordination attempts by the African Union, the continent is presenting three candidates for one seat. The bitter diplomatic row between Rwanda and Uganda means that they are each presenting their own candidate all the while Nigeria is also making a run with a very strong contender. However, Africa being the largest voting bloc at the General Assembly, a coordinated effort combined with a solid campaign could potentially result in the election of two candidates and increase Africa’s total number on the Court.
The same could be said for Eastern Europe. The group could theoretically snatch the extra seat by having both Tomka (the longstanding incumbent) and Seršić (the Croatian challenger) elected. This would bring some much-needed gender diversity on the ICJ bench, something that Croatia is eager to push in its campaign.
But the African and Eastern Europe ambitions might be stifled by the fact that it would mean winning an extra seat at the expense of one of the two Asian candidates running for re-election: Judges Xue (China) and Iwasawa (Japan). It might prove difficult, but certainly not impossible. Judge Xue is the current Vice-President of the Court and might benefit from what’s left of the convention securing P5 presence on the Court. Judge Iwasawa benefits from the incumbent’s position and Japan’s long history on the Court. There has been a Japanese judge at the ICJ continuously since 1976. But then again, this might prove a liability as other States, particularly in Africa, might feel that Japan has had its time. Ultimately, even if Judge Iwasawa has a strong backing, Japan is no safer than the UK might have been in 2017.
Has the UK given up on the ICJ?
If the African and Easter European groups might hope to increase their presence on the Court, the same cannot be said of the WEOG group. The German candidate, Professor Georg Nolte, is the only WEOG candidate running to fill the seat left vacant by the departure of Judge Gaja from Italy. There is thus no chance for the group to come back to its customary five seats. But what is most striking is the absence of any UK candidate trying to “reclaim” the lost seat from 2017. Many will see this absence as a form of disengagement from the UK.
Back in 2017, the UK Parliament’s Foreign Affairs Committee released a report assessing the ICJ election failure. The report warned that a prolonged absence from the Court would be “seriously damaging to UK interests”. As such, the Committee saw the election of an ICJ judge as “a clear priority” and recommended that the government “secure the election of a UK candidate to the ICJ at the next opportunity”. It would seem that this opportunity came and went.
It might be, however, that the UK is waiting for the path of least resistance. In this round Germany had already started campaigning back in 2018. But it is far from clear that the next round of election will be any easier. In 2023, the UK would potentially face the other WEOG incumbents from the US (Judge Donoghue) and Australia (Judge Crawford). Or it will have to gain its seat from one of the other three groups that will have a judge up for re-election: Africa, Latin American & Caribbean, and Eastern Europe. The other option is to wait for the 2026 election where it would face a battle with France for the WEOG seat or repeat the 2017 runoff against India or other non-WEOG candidates. None of these scenarios seems particularly attractive.
The US supporting China?
Another particular feature of this election season is the support expressed by the US for China’s candidate. The US group responsible for ICJ nominations, chaired by the incumbent Legal Advisor of the State Department, explicitly endorsed the candidacy of Judge Xue. At first glance, this might not be surprising for keen ICJ observers. There is in fact a longstanding tradition for the five permanent members of the Security Council to co-nominate all candidates of other P5 countries – a sort of pact to safeguard their continued presence on the Court.
What is surprising, then, is the fact that the US continues to abide by that tradition despite the all-out geostrategic confrontation between the two countries. The contrast is perhaps most strikingly illustrated when comparing the situation with the ongoing election campaign for the International Tribunal for the Law of the Sea (ITLOS). On that front, the US is leading a very unusual campaign against the election of the Chinese candidate. Given Beijing’s record in the South China Sea, the US State Department has said that electing a Chinese judge to ITLOS would be “like hiring an arsonist to run the Fire Department.”
But the US’s position seems difficult to justify in light of its support for Judge Xue. Indeed, there are a significant number of maritime cases at the ICJ and UNCLOS parties can actually direct their disputes to the ICJ instead of ITLOS. In fact, given its abundant case law on maritime delimitations, the ICJ has arguably made a greater contribution to the development of the law than ITLOS. But of course this is not the first nor the last foreign policy contradiction of this US administration. It might also be that the US wants to maintain P5 solidarity at the ICJ because it could be on the receiving end of China’s tit-for-tat retaliation. That risk is not present at ITLOS as the US is not a party to the Law of Sea Convention.
It used to be that ICJ elections were relatively uneventful. However, as with many other areas in the current international system, the pressure created by the realignment in the world order might alter the old traditions and practices. Overall, the 2020 election will be one to watch!