Nomination of Candidates
Candidates for election to the ICJ are not proposed directly by UN Member States but by their “national groups” at the Permanent Court of Arbitration (PCA). Under the 1899 Convention for the Pacific Settlement of International Disputes each PCA Member State is entitled to nominate four potential arbitrators of “known competency in questions of international law” who could act as arbitrators, known as “Members of the Court”, if required. The four Members of the Court from each Member State form the “national group” at the PCA. National groups are typically composed of practitioners, academics, members of the judiciary and diplomats, with experience in the field of international law. For example, the United Kingdom’s national group is composed of Sir Christopher Greenwood, Sir Frank Berman, Sir Elihu Lauterpacht and the Rt Hon Lady Justice Arden. UN Member States that are not represented at the PCA are entitled to submit nominations from a similarly constituted group.
The Statute of the ICJ recommends that the national group consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law, before making its 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. In theory the national group is independent from its corresponding Member State; the government’s degree of influence during the nomination process will vary from State to State. It has been know for national groups to reject a candidate proposed by the government, but a candidate without the support of his or her national government will experience a difficult time getting elected.
Once a candidate has been nominated, the support of the candidate’s country of nationality plays a vital role in the election of the candidate as a judge. Typically, government officials and diplomatic missions of the candidate’s State of nationality will campaign on his or her behalf in a variety of fora. This campaigning can take place amongst national groups, with the aim to secure nominations for the candidate, or directly at the government level, with the aim to secure commitments on the part of other States to vote for the candidate at the election. Foreign ministries typically send notes verbales to other States’ foreign ministries, and ambassadors may visit officials in the foreign ministry in the State to which they are accredited, with a view to securing support for a given candidate. In some cases, a commitment to vote for a candidate will be secured in a reciprocal vote-swap agreement, either informally or formally and in writing. A State may have several candidacy campaigns running for different international and regional tribunals and bodies and may be willing to engage in vote-swap agreements accordingly. Not all States engage in reciprocal vote-swap agreements, though the practice is thought to be widespread. The candidate may also engage in direct campaigning, which may include writing to or meeting with members of various national groups and with government officials around the world, visiting the General Assembly, paying courtesy visits to embassies, attending functions arranged by the Permanent Mission and attending and speaking at regional and international fora. Campaigning normally starts at least a year before the election. For example Judge Keith’s campaign started approximately two years before he was elected in 2005. Since the next elections will take place in November 2014, we can expect the beginning of any campaigning from now onwards.
Circulation of Nominations
The Secretary-General sends a written request for nominations to the various national groups at least three months before the date of the election. For the November 2011 election, national groups were requested to submit their nominations by 30 June 2011. This means that any States supporting candidates for the 2014 elections have until approximately June 2014 to secure nominations from national groups. National groups send their nominations directly to the UN Secretariat, as opposed to sending them via their foreign ministries or their UN Missions. The Secretary-General then submits the list of candidates to the General Assembly and to the Security Council, along with their C.V.s, and indicates which national groups have nominated which candidate(s). A national group may nominate more than one candidate, but no group may nominate more than four candidates, not more than two of whom may be of their own nationality. The number of candidates nominated by a national group cannot be more than double the number of seats to be filled. For a regular triennial election of five judges, this means that each national group may nominate a maximum of four candidates. Only one nomination is required for a judge to be listed on the ballot, but a large number of nominations provides an early indicator of a successful candidacy and of the effectiveness of involved States’ campaigning efforts. In 2011, the number of nominations received by candidates ranged from one for El Hadji Mansour Tall (Senegal) to 33 for Judge Owada (Japan).