The International Court of Justice (ICJ) is the principal judicial body of the United Nations, which adjudicates legal disputes between States and advises on questions of law submitted by authorized international organizations, in accordance with international law.
Naturally, it was a very proud moment for the Caribbean region and for Jamaica in particular when Mr. Patrick Lipton Robinson was elected to the ICJ. He is the first Jamaican and only the second CARICOM national to sit as a Judge of the ICJ. However, this is only one accomplishment among many in his very distinguished career.
On the international forum, Mr. Robinson has served on numerous Commissions as well as the International Criminal Tribunal for the former Yugoslavia (ICTY). From 2008 to 2011, Mr. Robinson served as the President of the ICTY having been a member of the Tribunal since 1998. Notably, in 2004, he presided over the trial of Slobodan Milosevic, former President of Yugoslavia and the first former Head of State to be tried for war crimes.[i]
Justice Robinson served as the Commissioner of the Inter-American Commission on Human Rights from 1988 to 1995 and a Rapporteur on the Rights of Indigenous Peoples from 1991 to 1995. [ii] In 1997, he served as Chairman of the United Nations Commission on Transnational Corporations.[iii]
Justice Robinson has also been a member of the International Law Commission (1991 – 1996) and the Haiti Truth and Justice Commission (1995- 1996).
Nationally, Justice Robinson served as legal adviser to Jamaica’s Ministry of Foreign Affairs and Foreign Trade occupied various positions in the Attorney General’s Department between 1972 and 1998.[iv]
Composition of the Court
The ICJ is composed of fifteen judges, each elected for a term of 9 years and eligible for re-election. The Court seeks to represent the main forms of civilization and the principal legal systems of the world[v], which has been achieved by comprising judges representing the regions of Asia, Africa, Latin America and the Caribbean, Eastern Europe and Western Europe. The Court may not include more than one judge from any State.
ICJ judges are required to be persons of high moral character and must be qualified for appointment to the highest judicial office within their respective State or jurisconsults of recognized competence in international law.[vi]
Nomination of Candidates
The candidates are nominated by the ‘national groups’ that each State designates to the Permanent Court of Arbitration. Each ‘national group’ consists of four nationals who are jurists and who may be called upon to serve on an arbitral tribunal under the Hague Conventions.[vii] Countries that are not represented on the Permanent Court of Arbitration offer nominations through similarly constituted groups. Therefore, while all States have the right to nominate candidates for election to the ICJ, the Governments themselves do not make the nominations. “The purpose of the national group system is to reduce the political element in the nomination process and to allow for the assessment of candidates by those with professional expertise in the field.”[viii]
Each ‘national group’ is permitted to nominate a maximum of four candidates who may be nationals of any State. However, no more than two nominees of any group may be of that group’s own nationality.[ix]
Usually, a candidate’s State through its foreign ministry, diplomatic missions and other government officials will campaign on his or her behalf to secure commitments by other States to vote for their candidate at the election. Naomi Burke cites several examples of how campaigning typically takes place: the foreign ministries of the campaigning State may send notes verbale to the foreign ministries of other States, ambassadors of the campaigning State may engage the foreign ministries of States to which they are accredited, the campaigning State may participate in a reciprocal vote-swap agreement, whether formally or informally and the candidate may also engage in direct campaigning, which may include writing to or meeting with national groups, government officials, paying courtesy visits to embassies, attending functions arranged by Permanent Missions and visiting the General Assembly.[x]
Campaigning by a State on behalf of its candidate is crucial to that candidate’s chance of success in the elections. Therefore the ability of the State to garner the necessary support is important. It can be said that Small Island Developing States (SIDS) such as Jamaica may have greater difficulty in campaigning because of fewer resources and possibly a lack of sufficient power and influence on the international scene. On the other hand, this may be countered by the fact, as mentioned, it is practice that each of the principal world regions must be represented in the composition of the Court. In this sense, it could be said that seats are “reserved” for candidates representing these regions.
Election of Judges
For the purpose of continuity, one third of the Court is elected every three years. Elections are held in New York at the annual autumn session of the General Assembly. Elected judges commence their term of office on the 6th of February in the following year.
Judges of the ICJ are elected by the principal organs of the United Nations: the General Assembly and the Security Council. Both organs vote simultaneously but separately and the successful candidate must receive an absolute majority of the votes in each organ.[xi] This means that in order to be elected, a candidate must receive at least ninety-seven votes in the General Assembly and at least eight votes in the Security Council.[xii] For the purpose of electing ICJ judges, the veto power of the permanent five members of the Security Council may not be utilized.[xiii]
The 2014 Elections
The elections of 2014 sought to appoint five judges to the ICJ from among the nine nominees who had been approved by the ‘national groups’.[xiv] On November 6, the first day of voting, four candidates were elected, having obtained the required majority in both Organs.
Voting continued on November 7 to elect the fifth candidate from between Ms. Susana Ruiz Cerutti of Argentina and Mr. Patrick Lipton Robinson of Jamaica. However, by the end of the day and after seven rounds of voting, neither candidate had secured the absolute majority in both Organs. More specifically, Mr. Robinson received an absolute majority in the General Assembly during each round, while Ms. Cerutti received an absolute majority in the Security Council in each round.[xv] In the General Assembly, Mr. Robinson’s lowest number of votes was 115 of 192; in the same round, Ms. Cerutti received her highest number of votes – 77.[xvi] In each round in the Security Council, Ms. Cerutti obtained 9 votes while Mr. Robinson obtained 6.[xvii]
As a result of the deadlock, further rounds of voting were scheduled for November 17. However, on November 12, by letter to the Presidents of the Security Council and the General Assembly, Argentina withdrew the candidature of the Ms. Cerutti.[xviii] With only Mr. Robinson remaining on the ballot, both the Security Council and the General Assembly elected Mr. Robinson to the remaining seat. There were no abstentions.[xix]
Argentina cited their reasons for withdrawal of Ms. Cerutti’s candidature, as respecting and strengthening regional unity considering that both candidates were from the Latin American – Caribbean region and both possessed the required professional and moral qualifications.[xx]
However, Argentina did highlight the procedure stipulated by the Statute of the ICJ for filling a remaining vacancy where no candidate is able to secure the required majority in both the Council and the Assembly. Article 12(1) of the Statute of the ICJ provides that if after the third meeting for voting, a seat remains unfilled, a joint conference consisting of six members – three appointed by the General Assembly and three by the Security Council, may be convened to elect a nominee to submit to the General Assembly and the Security Council for their respective acceptance.[xxi]
Argentina further highlighted that “the fact that this procedure has not been regulated to date 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.”[xxii]
In regard to Argentina’s admonition, it should be noted that recourse to the procedure of article 12(1) of the ICJ Statute has not been interpreted as arising automatically. Professor Akande has pointed out that the language of the Statute provides that a Joint Conference ‘may’ be formed.[xxiii] This view is supported in the 1984 Opinion of the United Nations Office of Legal Affairs in which it is stated: “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”.[xxiv] Professor Akande makes a further and important observation on the procedure of article 12: “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 General Assembly and the Security Council have agreed with the Office of Legal Affairs.”[xxv]
The alternative practice of States of withdrawing their candidate, the course adopted by Argentina, raises the issue of consistency with article 12 of the Statute. While noble, it does impact the spirit of democracy that it seems was intended by the election procedure. On the other hand, it is arguably most practical where the candidates competing for a seat are from the same region. In such circumstances, a decision cannot be taken on the basis of regional representation, as was the case in the 2011 elections.
Where continued voting is opted for, it is inevitable that one Organ will have to concede to the other. It has been suggested that usually the Security Council will concede.[xxvi] This would seem to be the more just position, as it is in the General Assembly that all States are represented and each has an equal vote.
by Kimberley Williams, a First Year student at the Norman Manley Law School
[i] Election of Judge Robinson to ICJ: A Proud Moment for All Jamaicans’ The Jamaica Observer (Kingston, 19 November 2014) <http://www.jamaicaobserver.com/editorial/Election-of-Judge-Robinson-to-ICJ-a-proud-moment-for-all-Jamaicans_17970036 >
[iii] ‘Election of Judge Robinson to ICJ: A Proud Moment for All Jamaicans’ The Jamaica Observer (Kingston, 19 November 2014) <http://www.jamaicaobserver.com/editorial/Election-of-Judge-Robinson-to-ICJ-a-proud-moment-for-all-Jamaicans_17970036 >
[v] Statute of the International Court of Justice (ICJ Statute), article 9.
[vi] Ibid, article 2.
[vii] Ibid, article 4.
[viii] Naomi Burke, ‘Conference 2015: Selection Procedure for the Election of Judges to the International Court of Justice’ (Cambridge Journal of International and Comparative Law, 2 November 2012) <http://cjicl.org.uk/2012/11/02/selection-procedure-for-the-election-of-judges-to-the-international-court-of-justice-2/ >
[ix] ICJ Statute, article 5.
[x] Naomi Burke, ‘Conference 2015: Selection Procedure for the Election of Judges to the International Court of Justice’ (Cambridge Journal of International and Comparative Law, 2 November 2012) <http://cjicl.org.uk/2012/11/02/selection-procedure-for-the-election-of-judges-to-the-international-court-of-justice-2/ >
[xiii] ICJ Statute, article 10(2)
[xvii] Dapo Akande, ‘ICJ Elections 2014: UN General Assembly and Security Council Elect four Judges to the ICJ But Fail to Agree on a Fifth, Again!’ (EJIL: Talk Blog of the European Journal of International Law, 10 November 2014) http://www.ejiltalk.org/icj-elections-2014-un-general-assembly-and-security-council-elect-four-judges-to-the-icj-but-fail-to-agree-on-a-fifth-again/
[xviii] United Nations, UN Doc A/69/575-S/2014/808<http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_808.pdf >
[xx] United Nations, UN Doc A/69/575-S/2014/808<http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_808.pdf >
[xxi] ICJ Statute, article 12.
[xxii] United Nations, UN Doc A/69/575-S/2014/808<http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_808.pdf >
[xxiii] Dapo Akande, ‘General Assembly and Security Council Elect Four Judges to the ICJ But Fail to Agree On Fifth Judge. What Happens Next?’ (EJIL: Talk Blog of the European Journal of International Law, 17 November 2011) <http://www.ejiltalk.org/general-assembly-and-security-council-elect-four-judges-to-the-icj-but-fail-to-elect-fifth-judge/ >
[xxiv] United Nations Juridical Yearbook 1984 International Court of Justice election procedure to be followed in the SecurityCouncil and the General Assembly, (Part two, Chapter VI, page 173) http://legal.un.org/UNJuridicalYearbook/pdfs/english/ByVolume/1984/chpVI.pdf#page=22
[xxv] Dapo Akande, ‘General Assembly and Security Council Elect Four Judges to the ICJ But Fail to Agree On Fifth Judge. What Happens Next?’ (EJIL: Talk Blog of the European Journal of International Law, 17 November 2011) <http://www.ejiltalk.org/general-assembly-and-security-council-elect-four-judges-to-the-icj-but-fail-to-elect-fifth-judge/ >
[xxvi] Dapo Akande, ‘ICJ Elections 2014: UN General Assembly and Security Council Elect four Judges to the ICJ But Fail to Agree on a Fifth, Again!’ (EJIL: Talk Blog of the European Journal of International Law, 10 November 2014) <http://www.ejiltalk.org/icj-elections-2014-un-general-assembly-and-security-council-elect-four-judges-to-the-icj-but-fail-to-agree-on-a-fifth-again/ >