1. Factors relating to the candidate’s quality

We can take for granted that Canada has a pool of candidates with qualifications to be elected to international courts and tribunals — suffice to look at the number of Canadians appointed as judges ad hoc at the ICJ to notice this. However, many other states face similar challenges. Apart from the qualifications of a candidate regarding their knowledge of, and expertise in, international law, another criterion is whether they have an international “profile” (are they known on the international stage?). John Alan Beesley (of the International Law Commission [ILC] from 1986 to 1991) and Philippe Kirsch (of the ICC) chaired major international treaty-making conferences for years prior to their elections and so were known widely among the voting states.

Qualified Canadian candidates may need to obtain some profile outside Canada and become known through membership in a setting like the ILC or a human rights treaty body and through travel to the Organization of American States (OAS), the African Union, the Association of Southeast Asian Nations, the European Council, or the Sixth Committee debates at the UNGA, for example. In sum, a qualified candidate must participate in various international law events around the world over some years. Membership on the ILC seems to correlate to getting elected to the ICJ in many cases historically (with the caveat that the ILC has thirty-four seats, while the ICJ only has fifteen seats, so needless to say not all ILC members can get elected to the ICJ).

Acting as counsel to Canada or other states in active ICJ cases is another way to enhance one’s profile. It helps also to have a candidate who has not been involved in sensitive political issues through public statements or who might be seen to be favouring one side or another in important international issues. Bear in mind also that ICJ elections are based on a slate of nominations of candidates made by each country’s “National Group” of the Permanent Court of Arbitration. The four members of the Canadian National group always consult widely with academia, the courts, and bar associations in Canada, as required by the ICJ Statute. Footnote ⁴ In my experience, these consultations usually produce several names but rarely result in coalesced support around one single candidate. Not that this is essential, but it does make the work of the Canadian National Group more difficult.

National Groups add an extra layer to the campaign. National Groups can, and do, nominate other countries’ candidates. The election in the UNGA and UNSC is based on a list of the nominated candidates with every country who has nominated them listed. There seems to be some electoral benefit in having multiple nominations; states that have a candidate start the campaign by lobbying each country’s National Group members in hopes of obtaining their endorsement.

2. Factors relating to Canada’s position on the international stage

There must be political will to support a candidate’s electoral campaign to an international court or tribunal. I am not talking about partisan politics; I am referring to the will to allocate Canadian government resources — both funds and manpower — to conduct the campaign. In addition, when I say “resources,” it includes Canadian government bargaining power, which means “vote trading.” A decision to run for a UN body as important as the ICJ would require ministerial approval, I presume, not only because of the importance of having a Canadian on the Court but also because of the resource implications, which is to say the cost of a campaign. To be clear, when I refer to vote trading, I am not suggesting voting for a country or a candidate that we would not otherwise vote for but, rather, letting the country concerned know our intentions in return for them agreeing to support our candidate. In other words, not voting just to get a vote in return, but not following our much earlier practice of never letting others know for whom we intended to vote.

First, there are the resources required for the actual campaign. To illustrate, I recall one campaign where we did several rounds of visits to permanent missions in New York and to all embassies represented in Ottawa. We also kept track of who said they would support our candidate in writing and provided that to the Permanent Mission in New York (PRMNY) for use on election day in case the person sitting in a state’s seat had not heard from their headquarters regarding who they were supposed to vote for. You must start a campaign early enough to tie up votes but not too early that a commitment gets forgotten — hence, the multiple procedures and visits undertaken during the campaign period. We discovered that countries that said they would support our candidate did not always do so. We also discovered that some countries are influential with their neighbours and that you need to work hard for their support. The bottom line is that you need a major campaign machine to run for something like an ICJ seat. To add, a country would need to be willing to have cabinet ministers in their travels seek support from other countries, which costs political capital.

Back to the finances: there would be costs associated with the travel and accommodation of the candidate over several years. For a campaign like that of the ICJ, with only fifteen seats and 193 members states, you would need to factor in travel costs to every region’s international law events, as I noted above, in order to raise a candidate’s profile. Travel to the PRMNY and Geneva for major international law events, for example, takes time and money. Frankly, even translating a resumé can get expensive (I recall one candidate, for example, who had a twenty-page resume that needed to be translated into Spanish). It can be very important that there be no conflict with a bigger campaign of national importance, like a campaign for a seat on the UNSC (which Canada used to run for every decade). This is important because of the intersection of vote trading across bodies and across campaigns. If, as a state, you have used up your political capital to secure a high value UNSC seat, you will not have much left for other concurrent campaigns.

During my time at the Legal Bureau, Canada had an informal agreement with Australia and New Zealand to rotate candidacies for the ILC, and, ultimately, the ICJ, to enhance the odds of success and in order to avoid “running against each other.” In effect, this was like a small bloc of states since we were not members of other blocs like the European Union, the Caribbean Community, the African Union, or the OAS, which often vote for their bloc’s agreed candidate.

Canada’s standing in the UN or with specific countries matters. If a country does not really know our candidate but thinks highly of Canada, we may sway its vote and vice-versa. I can tell you from experience that when we close a mission (embassy), it makes it harder to get that country’s vote in any campaign immediately thereafter. Some countries are very persuaded by a country’s voting record in the UN on resolutions that matter to them. Similarly, negative bilateral relations with a country can make securing its vote very difficult. One upside for Canada is that, in a few countries, the influence of the assessment of candidates by the foreign ministry and justice department can be significant. I experienced a few instances where a senior lawyer in a foreign government had studied international law in Canada and was inclined to vote for our candidate because of this relationship. So, a note to all international law professors: treat your foreign students well.

3. Factors not related to Canada or the candidate

Sudden changes to other countries’ availability to run a candidate can make for an opening if you have a pool of available and qualified candidates. So, we may need to be nimble and respond to unexpected opportunities as well. The stars could suddenly align without us predicting it. Timelines are very important. Given that a term as judge of the ICJ is nine years (with one-third of the roster elected every three years), the window to run for a seat on a court like the ICJ is probably at least ten years. Thus, we should look ahead to who would be available and qualified in ten to twenty years and not who is available/qualified now (except for the unexpected opening)!

Summarized, unless there is a sudden realignment of the stars, the task is a long-term one for something as major as the ICJ and probably entails a number of steps, including getting general consensus within the Canadian international law community (government, academia, and profession) around several possible candidates. Then, resources would have to be spent on getting them an international profile and putting them in a position to be credible candidates. All this while resources are tight and government international lawyers are, I assume now as in the past, stretched to the limit with work unrelated to running an electoral campaign.

I would leave you with this: what does Canada have to offer? Foreigners would probably suggest that our value is in our bilingual, bi-jural system. Canada has generally been seen as a country where, from the perspective of the Canadian people, the rule of law is as important in international affairs as military might. Perhaps, at times, we have been seen as a bridge between Europe and the United States (though not so much now perhaps). The Canadian view on international law, traditionally, has been a mix of idealism (that is, our legacy on the ICC, on the issue of land mines, and with human rights) and pragmatic self-interest (such as with UNCLOS and trade generally).

What Canada has to offer the world in international law terms is not, luckily, restricted to membership on the ICJ. I think it is equally important to consider other international courts and tribunals and legal bodies (such as the ILC or the Interamerican Juridical Committee); these are equally important in ensuring Canada is heard on the international stage.