As a memorandum by the Secretary-General of the United Nations (SG) notes, the terms of five current judges of the International Court of Justice (ICJ) will come to an end on 5 February 2015 (Judges Sepulveda, Keith, Bennouna, Skotnikov, and Donoghue). An election to fill these five vacancies is scheduled for the morning of Thursday, 6 November. The details of the voting procedure to be followed in the General Assembly and the Security Council are described in the SG’s memo.
Following the procedure laid down in Articles 4-7 of the ICJ Statute, nine candidates have been nominated by the national groups of the Permanent Court of Arbitration (PCA) to fill the five vacancies. The nine candidates are: Jemal Agatt (Mauritania); Eugenie Liliane Arivony (Madagascar); Mohamed Bennouna (Morocco); Sayeman Bula-Bula (Democratic Republic of the Congo); Susana Ruiz Cerutti (Argentina); James Richard Crawford (Australia); Joan E. Donoghue (USA); Kirill Gevorgian (Russia); and Patrick Lipton Robinson (Jamaica). Of these, Mohamed Bennouna and Joan Donoghue are members of the Court already and are seeking to be reelected for a second term. The list of candidates prepared and circulated by the SG also indicates the nominations received by each candidate. James Crawford leads the list of nominations, having been nominated by the PCA national groups of 27 States, followed by Joan Donoghue (22 nominations), Kirill Gevorgian (13 nominations), Mohamed Bennouna and Susana Ruiz Cerutti (11 nominations each), Patrick Lipton Robinson (seven nominations), Jemal Agatt, Eugenie Liliane Arivony, and Sayeman Bula-Bula (one nomination each). Of course, these nominations are not determinative of the results, which are influenced by a number of other professional and geopolitical factors, such as the regional representation on the bench, “P5” candidates, etc. In addition to the list of candidates and the nominations received by them, a document containing the curricula vitae of the candidates has also been circulated by the SG.
From a South Asian perspective, it is interesting to see that hardly any national groups from the region have nominated any candidate. A quick survey reveals that the national groups of only four Asian States have engaged in the process: Viet Nam, Thailand (both nominating James Crawford), China, and the Republic of Korea (both nominating Joan Donoghue and Kirill Gevorgian). India’s case is rather disheartening as it does not even appear to have a national group anymore, with the mandate of all of the PCA members it nominated having expired.
The results of the ICJ elections held today in New York are out. India’s nominee, Justice Dalveer Bhandari, has been elected to the World Court. Justice Bhandari obtained 122 votes in th UNGA and 13 votes in the UNSC. Justice (retd.) Florentino Feliciano, the other nominee from the Philippines, secured 58 votes in the UNGA. The official ICJ press release, which includes a lengthy curriculum vitae of Justice Bhandari circulated by the UN Secretariat, can be found here.
ILCurry congratulates Justice Bhandari on his appointment to the ICJ. The last Indian to serve at the ICJ was Raghunandan Swarup Pathak, who retired in 1991.
UPDATE (28 April 2012):
Here are some official photos from the UN website of the elections at the UN headquarters in New York:
The elections for a vacant judge’s position at the ICJ are scheduled for today (April 27). As previously noted, the two nominees are: Justice Dalveer Bhandari (India) and Justice (retd.) Florentino Feliciano (Philippines).
Some recent reports suggest that Justice Bhandari’s nomination was challenged (unsuccessfully) before the Supreme Court of India. An Indian LL.M. student filed a PIL challenging the nomination of Justice Bhandari on the ground that the nomination of a sitting judge of the Supreme Court compromised the independence of the national judiciary. According to one report, the petitioner stated:
As a matter of principle, selection of a sitting judge of the highest court of the land by the government creates a grave situation of conflict of interest and compromises the independence of the judiciary. The independence of the judiciary is part of basic structure of the Constitution of India. Selection to post like that of a judge of the ICJ, by its very nature, involves heavy lobbying on part of the government,” thepetition said. “Many of the important cases dealt by a judge of this court involve the Union of India as either the petitioner/appellant or as a respondent.
According to another:
Advocate Prashant Bhushan appearing for the petitioner, a LLM student, meanwhile argued that if Justice Dalveer Bhandari fails to obtain the position at the ICJ, it would be difficult for him to maintain his judicial independence henceforth as he would have sought assistance of the government for the appointment. The position will see an election for the post on April 27.
Referring to the nine-judge constitutional bench verdict in ‘Advocate on Record Association case’ which had ruled that judicial appointments shall not be influenced by the executive, Bhushan said the present case was like a case in which a sitting judge of the Supreme Court is offering himself a position to the post of member of the Lok Sabha while allowing political parties to lobby for him.
The petitioner seems to have challenged not the suitability of Justice Bhandari per se, but the practice of nominating sitting Supreme Court judges at all. We have had a lengthy and detailed debate, albeit from a slightly different perspective, on whether Indian Supreme Court judges are ideal ICJ judges here. It is notable that even though the Supreme Court dismissed the challenge, it suggested that the vires of the rules made by the government for the nomination process could have been challenged instead.
More after the result of the election!