1. Introduction
It is widely acknowledged that judges of the ICJ are eminent jurists of high merit. However, little is known about the ‘extra-legal factors’ (the candidates’ backgrounds, ideological orientations, personalities) that can matter for states in the selection and election of the judges to the ICJ bench. In official communications (that are and publicly available), such factors are rarely discussed as they are usually ‘cloaked’ by reference to expertise and merit of the candidates.
The tale is well-known: ‘the best candidate gets to the bench’. This idealistic vision vanishes quickly once one learns that only candidates from a handful of countries historically have dominated the judicial bench. According to Kenneth Keith:
The 106 members of the Court elected since 1946 come from only 50 countries, and the nationals of just 11 of those countries – the P5 [permanent five members of the UN Security Council], Brazil, Germany, Italy, Japan, Nigeria and Poland – have served on the Court for nearly half of the total judge years available.Footnote 1
This poses a number of questions: what are these factors behind the ‘cloak’ of merit? What are states looking for in the candidates for the ICJ bench? Why do some states value certain characteristics in the candidates over others? And, most importantly, how are choices between extremely meritorious candidates construed and allocated through available political process?
To answer these questions, this article examines the judicial selection and election process in the ICJ through the prism of the theoretical framework on comparative international law as defined by Anthea Roberts. As Anthea Roberts explains, ‘different communities of international lawyers construct their understandings of international law in ways that belie the field’s claim to universality and perpetuate certain forms of difference and dominance’.Footnote 2 According to Roberts, ‘patterns of difference and dominance are dynamic’.Footnote 3 They depend on shifting geopolitical powers, and changing influences within and of various international fora.Footnote 4 Roberts points out that there is ‘no monopoly on defining international law’, however, some powerful (Western) states can be more successful in ‘exporting’ their domestic approaches and defining them as ‘universal’ international law.Footnote 5 Accordingly, in its application to the topic at hand, this approach helps present the election process in the ICJ as one aspect of the broader geopolitical struggle to define (the meaning, purpose, and parameters of) international law. The Court is an instrument in this struggle because it has power to legitimize a particular worldview.Footnote 6
We know that the selection and election processes are heavily politicized. Under politicization here, I simply mean that the selection and election of ICJ candidates entails careful scrutiny of extra-legal factors beyond purely legal requirements specified in the ICJ Statute. ‘To demystify’Footnote 7 the selection of the candidates to the international courts (including the ICJ), commentators track patterns of judicial voting,Footnote 8 extra-judicial activities of the judges,Footnote 9 examine the politics of international judicial appointments,Footnote 10 including late nominations and withdrawals of candidates,Footnote 11 and the role of states and non-state actors in the selection and appointment of judges.Footnote 12 Most of these research outputs focus on analysing publicly available (‘outward’) manifestations of the states’ choices.
The insider’s (‘inward’) perspective on the process is less covered. The scarcity of publicly available information justifies a somewhat fragmented coverage of the issue. Perhaps the most comprehensive study of the issue is the volume Selecting International Judges: Principle, Process, and Politics.Footnote 13 It reveals informal processes that pertain to the selection and appointment of candidates to the bench.Footnote 14 In another work, Philippe Sands has discussed the selection and appointment process from the perspective of the British Foreign Office in the period from 1946 to 1960.Footnote 15 Sands identified that the Foreign Office was concerned to ‘try to maintain a degree of control over the tenure of the seat’ that, at the first elections to the ICJ in 1946, was taken by Judge Read of Canada, and subsequently ‘occupied by Judge Sir Percy Spender of Australia’.Footnote 16 The internal memorandum by Fitzmaurice, quoted by Sands, indicates that the Office ‘like[s] to regard this as a white Commonwealth seat, but it is by no means certain whether we shall always be able to do so’.Footnote 17 This comment demonstrates that the seat allocation in the ICJ has never been exclusively a matter of merit; historically, extra-legal factors were relevant, including those along racial and colonial lines.
This article examines such extra-legal factors to demonstrate that elections of candidates to the Court constitute another aspect of a broader political struggle to define the meaning of international law. For greater clarity, the word ‘struggle’ here is not used as an abstract term; it should be understood as an intention to acquire a degree of control over the Court as an instrument that has authority to control the discourse. As Michael Foucault explained: ‘in every society the production of discourse is at once controlled, selected, organized and redistributed by a certain number of procedures’.Footnote 18 If we view states as members of international society or community, the elections of candidates to the Court becomes both an instrument and a procedure for controlling the discourse. The characteristics of the judges thus matter as a proxy to control the production and direction of such discourse. To unpack this argument, this article resorts to a historical example.
The article focuses on the characteristics that the United States prioritized in the selection process for seats in the ICJ in the period from 1975–1978. There is strong evidence that geographical diversity was only a concern of the US insofar as it served to reinforce the informal principle that the permanent United Nations Security Council (UNSC) members would be represented on the bench. Simultaneously, the US demonstrated a desire to pick ‘safe’ candidates that would ideologically preserve the existing ‘pattern of dominance’ (in Anthea Roberts’ words) at the Court to achieve the most ‘pro-Western’ bench possible. These findings indicate that the Department of State was concerned about the characteristics and backgrounds of the candidates only so far as such characteristics can indicate whether the candidates will advance or disrupt a particular vision of universality. It is not that the Court renders biased decisions in favour of Western or non-Western states, rather states believe that those who occupy the bench will influence the reasoning and the outcomes. Thus, the elections to the Court are viewed as an instrument and procedure to define the discourse in international law.
These findings represent only a piece of the puzzle that seeks to contribute to the inward knowledge on the Court’s workings. The article should be read and understood within the conversation that Romano et al., Sands, and others have already started. It situates its findings within a broader discourse on the (de)politicization of the election process to argue that politicization of the ICJ’s elections is inevitable, and is only problematic insofar as the processes are structurally tilted to give strategic lobbying advantage to some UN members over others, particularly in circumstances when structural safeguards are not sufficient to address the tilt. Thus, the tilt is problematic because it effectively undermines a level playing field in the process of political bargaining and privileges some states over others in controlling the direction and production of the discourse. In these circumstances, extra-legal factors that matter to some states may supersede those that matter to others. In Roberts’ terms, it means that the political process is set to reinforce (and preserve) existing patterns of dominance in international law.
History shows us how a change in the composition of the Court results in the shifting of judicial choices that ultimately influence outcomes. The South Africa cases of 1962 and 1966 are an example of this.Footnote 19 The disputes concerned the violation of Mandate authority by South Africa in, then, South-West Africa and involved the Court considering the issue of apartheid. In its judgment of 1962, the majority ruled that the Court had jurisdiction to hear the dispute between Ethiopia, Liberia, and South Africa. In 1966, Ethiopia and Liberia challenged the validity of the mandate of South Africa on the basis that ‘[t]he Union has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory’Footnote 20 and ‘in administering the Territory, has practiced apartheid, i.e. has distinguished as to race, colour, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory’.Footnote 21 The Court de facto revisited its position of 1962, and concluded that ‘the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims’.Footnote 22 The Court’s majority employed a purely formalistic approach to legal analysis of the third party interest. According to Edward McWhinney, the decision ‘brought a torrent of criticism, in the U.N. General Assembly and elsewhere, that the Court had given a politically biased and prejudiced judgment – “a white man’s decision, rendered by a white man’s tribunal”’.Footnote 23 The change of the outcome occurred because the former majority of 1962 turned out to be in minority in 1966.
The article proceeds as follows. First, it examines the importance of legal and extra-legal factors in judicial elections in the context of the politics versus law dichotomy. Second, it examines in what scenarios politicization of elections can be problematic. It concludes that politicization is inevitable and can be particularly problematic when the political process is structurally tilted to privilege particular extra-legal factors over others. Third, it examines some aspects of the structural tilt, ways to bypass it, and draws some lessons in the context of the most recent elections to the ICJ in 2017. Finally, the article makes concluding remarks.
2. Politics vs. law: Legal and ‘extra-legal’ characteristics
The dichotomy of ‘politics versus law’ persists in international law. It finds reflection in scholarly and judicial debates on the nature and scope of ‘political question’ doctrine in international adjudication.Footnote 24 Yet, for the purposes of this article, such a dichotomy is misconstrued because ‘[n]o final distinction between law and politics is worth making, not because judicial decisions are mere dressing for naked political power, but because the requirements of constructing legal order involve irreducible political element’.Footnote 25
As this section shows, the selection and election of candidates for the ICJ is at the epicentre of political bargaining in the United Nations General Assembly (UNGA) and the UNSC. In the election process, two types of factors control who can succeed in getting the seat at the ICJ bench: legal (i.e., those specified in the Statute and the Charter), and extra-legal (or informal factors) that states employ in selecting which candidates they will back during bargaining. If the election is viewed as the instrument and process to produce and direct discourse on the meaning of international law, extra-legal factors become increasingly important as means to control the discourse. This section examines the legal factors in elections to provide the overview and background, and extra-legal factors that were important for the US Department of State in the period of 1975–1978 to give an example of what factors can be meaningful for states and why.
2.1 Legal factors in the selection and election process: Background
The following two subsections provide an overview of the legal factors that pertain to the selection and election of candidates for the bench of the Court. The first subsection examines the provisions of the Charter and the Statute to overview the legal requirements for candidates. The second subsection focuses on some legal aspects of the election process in the UNSC and the UNGA. Both subsections show that the Statute and the Charter (i) define the legal requirements for the candidates in broad terms, and (ii) subject selection of the candidates to a multi-stage political process.Footnote 26
2.1.1 Judges
The legal requirements for the selection of international judges to the ICJ are broadly formulated. According to Article 2 of the ICJ Statute:
The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character who possess the qualifications required in their respective countries for appointment to the highest judicial offices.Footnote 27
Article 2 of the Statute emphasizes almost exclusively the characteristics that relate to merits, such as ‘high moral character’, and ‘qualifications’. Arguably, the requirement that judges can be elected ‘regardless of their nationality’ reinforces prima facie the perception that who sits on the bench should not matter for the electors since judges will be interpreting and applying universal international law. The requirement of Article 2 reflects an attempt by the Statute drafters to depoliticize the process of judicial appointments and selection; and to distinguish the Court as ‘the primary judicial body of the UN’ from other political bodies such as the UNSC and the UNGA.
Thus, the Statute prescribes that the ICJ judges must be independent, elected without regard to their nationality, possess high moral character, and qualifications that are required to be appointed to top judicial offices.Footnote 28 These characteristics do not simply set the list of criteria that candidates must meet, rather they define the relationships between the states and the candidates, and simultaneously determine the relationship of the candidate and the state with the Court as a judicial body.
Among these characteristics, the criterion ‘regardless of their nationality’ deserves the most careful scrutiny. The characteristic of nationality runs as a red thread through the Statute.Footnote 29 According to Aznar-Gomez, the requirement has dual meaning:
[o]n the one hand, candidates could come also from non-state parties to the ICJ Statute, which seems to imply that the system brings together individuals, not citizens; on the other hand, the nationality of judges is not directly linked with the nationality of the sponsor State(s).Footnote 30
The requirement ‘regardless of their nationality’ indicates that merit should have pre-eminence in the election process. The nationality provisions reflect the Advisory Committee of Jurists’ position that the Court is not a political organization but a judicial entity in which the judges do not advocate in favour of the particular positions of nominating states but rather uphold international justice.Footnote 31 For instance, in the discussions at the Committee, De Lapradelle emphasized that ‘the judges would not represent States and, that in theory, the judges of the Court would have no nationality’.Footnote 32
2.1.2 Process
Judicial election and nomination consist of a multi-staged process. According to Article 4 of the Statute, only candidates nominated by the national groups can proceed to elections in the UNGA and UNSC.Footnote 33 The national groups include the four members of the Permanent Court of Arbitration (PCA). The national groups are independent bodies that can nominate up to four persons where ‘no more than two of them may be of the nationality of the nominating group’.Footnote 34 The ICJ Statute recommends that each national group should ‘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’.Footnote 35 This approach shows an attempt to ‘insulate law from politics’ as the drafters intended to limit ‘political considerations’ in the selection and nomination process of candidates to the ICJ.Footnote 36 In practice, the national groups can be heavily influenced by national governments. The influence of the governments in this process can vary considerably from national group to national group.Footnote 37
After the nomination by the national groups, the UNGA and UNSC vote simultaneously for the candidates.Footnote 38 To be elected, the candidates must acquire a majority of votes in the UNSC and UNGA. The process usually requires several secret ballot rounds. For instance, in the elections of 1978, five out 15 judicial seats at the bench of the ICJ were open for election. Comparing ICJ election years to wine vintages, Niels Blokker and Sam Muller characterized 1978 as ‘not a very good year’.Footnote 39 UNSC took ‘14 ballot rounds to reach agreement on the final seat’.Footnote 40 Three extremely meritorious candidates (Ago of Italy, Manner of Finland, and Jayewardane of Sri Lanka) competed for a single seat.Footnote 41
Eventually, Ago secured victory with a minimal majority in the UNSC. It took Ago five ballot rounds to obtain majority in the UNGA.Footnote 42 Section 2.2 will discuss extra-legal factors that arguably explain why it took Ago multiple rounds to secure the seat, and why Manner of Finland and Jayewardane of Sri Lanka could not succeed despite the fact that they all met the necessary legal requirements under the Statute. Elections to the ICJ are organized so as to account for regional distribution. The candidates usually represent a regional group, which include: the African States Group, the Group of Latin American and Caribbean States (GRULAC), the Eastern European Group (EEG), the Asia-Pacific States Group (Asia Group), and the Western European and Others Group (WEOG).Footnote 43 Judges are elected for a term of nine years and can be potentially re-elected an unlimited number of times.Footnote 44
It is worth recalling that Article 9 of the Statute explicitly requires of the electors ‘to bear in mind’ that ‘in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured’.Footnote 45 Article 9 echoes the member of the Advisory Committee of Jurists, Francis Hangerup of Norway, former Chairman of the Institut de Droit International, who commented on the issue of representation as follows ‘the electors should be under a moral obligation to ensure the representation of various legal systems’.Footnote 46 Asian and African states have argued that historically the composition of the Court never reflected this principle in a true sense since Asian and African candidates historically have been underrepresented.Footnote 47 It is also worth noting that the composition of the Court has changed considerably over the years to reflect expanding UN membership.Footnote 48
The multi-staged selection process opens up opportunities for extensive political bargaining inbetween the rounds.Footnote 49 In particular, this process provides states with a greater timeframe to advance and support candidates with certain extra-legal characteristics. Scrutiny of such factors can explain (i) why some candidates (even the most distinguished ones) succeed where others fail, scrutiny of such factors can reveal geopolitical preferences of states in a certain period of time; and (ii) what characteristics of candidates (as states believe) are significant for directing and controlling the discourse to define international law. The following section focuses on the factors that the US State Department deemed important in the period of 1975–1978. This is, of course, not a list of universally accepted factors, but rather historical evidence to illustrate what extra-legal factors can be potentially important and explain why this is the case under Roberts’ framework.
By default, materials are limited in time and space. They, thus, should be viewed as another piece of the puzzle in a broader scholarly investigation on the workings of the Court. While the materials are of historical value, they permit us to draw a number of conclusions on the importance of extra-legal factors in the selection process that may be relevant for the contemporary election process.
In particular, diplomatic cables demonstrate that geopolitical context matters in identifying relevant extra-legal factors, and that the US (at least in that period) viewed the elections to the Court as an instrument and a process (in a Foucauldian sense) to control, shape, and direct discourse on the meaning of ‘universal’ international law. The cables also provide a greater detail of regional differences within a WEOG group that seemingly put the convention of seat allocation in jeopardy and created possibilities for potentially taking over of the seat by other groups. In addition, the cables also provide some additional context for the publicly available record, particularly on the elections of 1978 that explain the process and the outcome of that election cycle.
2.2 Extra-legal factors in 1975–1978: ‘Most pro-western bench possible’
The cables capture a period during which two election cycles occurred for the seats at the Court. However, prior to analysing the cables, permit me to provide a snapshot of publicly available records that pertain to the elections. In 1975, five seats were open for elections.Footnote 50 A total of 17 candidates competed for these seats.Footnote 51 Manfred Lachs, Shigeru Odaand, and Salah El Dine Tarazi succeeded at the first ballot.Footnote 52 The record of the meeting shows that the UNGA had to proceed to the fourth vote on the unrestricted ballot to fill the last seat.Footnote 53 Prior to the final vote, the meeting was suspended for almost two hours.Footnote 54 Sweden (Petren) and Norway (Hambro) announced that they would not press their candidates, this allowed another WEOG candidate (Mosler of the Federal Republic of Germany (FRG)) to secure the seat, and thus, prevented the seat from being taken over by other competing regional groups.Footnote 55
In the elections of 1978, a total of five judicial vacancies at the Court were open. Ten candidates competed for these five seats.Footnote 56 Camara, Baxter, Morozov, and El Erian achieved absolute majority on the first ballot.Footnote 57 Ago, Jayewardene and Boissier Palun continued competition for another 14 rounds until Ago acquired the necessary majority to secure the seat.Footnote 58 It is worth noting that the last seat by convention belonged to WEOG. The voting record captures the process in some detail, including the requests by some delegates to suspend the meeting and withdrawals of the candidates. Two aspects are most interesting for our purposes. First, the record indicates that Manner of Finland withdrew his candidacy (the cables shed some light on why it might have occurred).Footnote 59
Second, the record includes the request of the Sri Lankan delegation to suspend the voting for ten minutes for ‘consultations’ to ‘arrange a conclusive ballot’.Footnote 60 Seemingly, this period was used for an additional round of lobbying and strategic negotiations. It also demonstrates how UN members utilize rules of procedure to strategically acquire votes. After the suspension and withdrawal of Manner (as a point of order immediately after the end of a ten-minute period), the number of votes for Jayewardene increased from 54 to 57.Footnote 61 Ago was able to secure the necessary majority and thus, preserve the WEOG seat.Footnote 62 Diplomatic cables provide additional details that can explain (at least partially) why Ago (an extremely meritorious international jurist) took five ballot rounds in the UNGA to secure the seat, and why the Sri Lankan candidate persisted until the final ballot.
The examination of the ‘behind the scenes’ process shows that the US State Department was concerned about the backgrounds of the candidates only insofar as their particular characteristics could indicate that the candidate would advance a particular vision of universality. The communications between the US Department of State and other governments that pertain to ICJ elections reveal that the US focuses on the following characteristics when deciding whether to support the candidates. First and foremost, the US Department of State is concerned with the ideological affiliation of the candidate, i.e., whether the candidate’s views are compatible with the US approaches to foreign policy matters, such as states’ responsibility. In the internal communications, Roberto Ago, an Italian candidate and prominent jurist, received negative characterizations from the US State Department. According to the diplomatic cable:
Roberto Ago may have turned out a greater volume on international and other legal subjects than any person alive. But volume does not necessarily import quality and usefulness, witness the indigestible commentaries Ago has produced as the International Law Commission’s Special Rapporteur for the topic of state responsibility. US interests are not likely to be furthered by the series of state responsibility Draft Articles he has produced for ILC consideration, [particularly] concerning protection of foreign investment where the US has particular concerns.Footnote 63
Previous work by the candidates that revealed their ideological affiliation and positions on key matters played an important role in selecting candidates, at least according to governmental communications. For instance, the communications between France and the US Department of State reveals that France refused to vote for Edward Hambro’s candidacy. The French delegation reported that their position was ‘adamant’ and ‘unalterable’ because of the ‘latter’s shameless appeal for non-aligned votes’ in Hambro’s speech in the Sixth Committee on the International Law Commission Report.Footnote 64
However, agreement with all of a government’s positions was not necessary to secure a favourable characterization. In its review of Antonio Gomez Robledo, the US Department of State emphasized that Robledo is ‘a strong advocate of the doctrine of non-intervention’ and ‘had not always agreed with US positions’, but he is ‘considered friendly to the US Embassy’.Footnote 65 It seems that ideology was relevant to identify whether the candidate circulated in appropriate circles to be considered ‘friendly’ to the US politically.
The Department of State put significant weight on whether the candidate shared an overall ‘pro-Western orientation’ to ‘achieve the most western oriented bench possible’.Footnote 66 The US Department of State was particularly concerned that due to the inability of the WEOG group to agree on a single candidate, the seat ‘may be permanently lost’ to a ‘pro-Marxist candidate such as Tarazi of Syria’.Footnote 67 Interestingly, the nationality of the candidate did not preclude support or at least a favourable characterization from the Department of State. For instance, Abdullah El Erian, a candidate from Morocco, obtained a very positive review from the Department as an ‘outstanding’ candidate who had ‘consistently shown himself to be a wise and balanced counsellor, pro-Western and moderate in his political views, friendly to the United States’.Footnote 68 The Department also emphasized that ‘El Erian is Harvard and Columbia educated, Liberal, pro-Western, moderate in his opinions, immoderate in his friendships and a man of exceptional courage who has demonstrated his readiness to stand up publicly to the radicals of the third world’.Footnote 69
The emphasis on Western education is evident. Of course, it demonstrates that the candidacy is meritorious. However, the cables do not specifically reference any other education except Western education. Such reference is significant because education is a form of socialization into the profession and a ‘particular cultural position’, a way to embed a particular ‘system of thought’.Footnote 70 It is not that educational backgrounds inevitably and immediately turn the candidates to a certain mode of thinking about law and society, rather the point is that education introduces candidates to the relevant epistemic communities (in this case of international lawyers).Footnote 71 As Edward McWhinney points out, in the context of international law, such socialization at least for elite international lawyers occurs in ‘the same World legal centers’ and ‘by the same teachers’.Footnote 72 This results in ‘the increasing homogenization of an international legal elite’.Footnote 73 Roberts indicates that many international judges ‘studied at a handful of elite law schools in a small number of states’.Footnote 74 Most of these schools are located in the West, and include Cambridge, Oxford, University of Paris, Yale, and Harvard.Footnote 75
When the points on professional socialization read in conjunctions with Roberts’ findings on the educational backgrounds of the international judges (who exactly represent such elites), it becomes evident that emphasis on the Western education in the cables is not simply a way to emphasize merit. The candidates educated in the West may be perceived as ‘safe’ because they are embedded in the Western circles that promises in what kind of international law these candidates will invest in.Footnote 76 Accordingly, this characteristic becomes another way to control and shape the discourse to determine what constitutes universal international law.
Notably, the review of a candidate’s ideological affiliation and pro-Western orientation were not limited to matters specific to international law and the pro-Western/pro-Communist divide, but also the North-South divide. For instance, in reviewing Sette Camara, a Brazilian candidate, the US Department of State highlighted that Camara ‘invariably renders a strong support of developing country causes … he can certainly understand interests of developed states but what weight he would give them in any case involving North-South differences may be open to question’.Footnote 77
My reading of the cable is that the US Department of State was receptive to Camara’s candidacy because Camara demonstrated flexibility regarding the concerns of the developed states. The crucial aspect of Camara’s candidacy was that he had anti-communist orientation and was ‘friendly’ to the United States.Footnote 78 This discussion reveals that the chief concern for the Department was to support the candidate of anti-communist orientation, which reflects geopolitical context at the time in hope that this background will influence Camara’s outlook on the application and interpretation of international law.
Generally, nationality (i.e., geographic) distribution on the bench seemed to be a factor (at least for the US Department of State) only insofar as it helped to maintain the seat allocation pattern at the ICJ.Footnote 79 In particular, the Department was concerned with preserving the, then, current seat allocation including judges from the permanent members of the UNSC.Footnote 80 This seems to echo Sands’ findings on the approach of the British Foreign Office for the elections from 1946–1960s. As Section 5 of this article will show, this remained a serious concern for the UK in the 2017 elections when Judge Greenwood lost his seat.
In our context, the US Department of State aired a concern that the WEOG might lose its seat on the ICJ which could result in the disruption of the, then, current status quo on seat allocation at the World Court.Footnote 81 In communications with the Department of States, other states of the Western Group insisted on rallying behind their ‘sub regional’ candidate. For instance, the Nordic states seemed to adhere to a principle of supporting the Nordic candidate over any other ‘Western’ candidate.Footnote 82 For example, the Government of Denmark (in its communications with the US Department of State in relation to the ICJ elections) indicated that, for the WEOG seat, it would support the candidacy of Manner (Finland) over Ago (Italy) ‘out of consideration for Nordic unity … unless Manner and Ago reach an accommodation prior to elections’.Footnote 83 The Danish Government also confirmed well in advance of the elections that it would cast a vote for the US candidate.Footnote 84 Accordingly, there was stiff competition for the WEOG seat along regional lines.
Third, candidates with strong personal networks and reputations in international law were particularly well regarded. For instance, Deputy Legal Advisor Schwebel informally explained to Jules Deschenes, a Chief Justice of the Superior Court of Quebec, who was interested in an ICJ seat, that a well acclaimed reputation as an international lawyer improved a candidate’s chances in the election process.Footnote 85 The Department also highlighted previous engagement with US officials, which appeared to be a strong factor in favour of the candidate.Footnote 86 One of the cables discussed the candidacy of Taslim Olawale Elias from Nigeria, a former ICJ Judge and ICJ President, with particular attention to the candidate’s reputation in international legal circles and his engagement with US officials. The cable emphasized that Elias is ‘highly respected in international circles’ and that ‘trained in the UK, Elias was initially cool to the US but has established extensive contacts with U.S. jurists and has become keenly interested in the U.S. legal system, which he believes has much to offer Nigeria’.Footnote 87 The importance of previous personal connections is reinforced by diplomatic cables that emphasize previous engagement with the candidate. For instance, in relation to the Finnish candidate Eero Manner, the US Department of State observed that he was ‘an individual with whom U.S. personnel have had good and productive relationships’.Footnote 88 Accordingly, personal engagement with the candidate prior to the election contributes to a favourable assessment.
Finally, the candidate’s personal qualities seem to be a factor in the selection process. For instance, one cable suggests that ‘an advocate for U.S. positions in litigation before the ICJ would face with far greater confidence a bench of quietly sensible manners than one composed of mercurial and ego-centred Ago’.Footnote 89 Interestingly, Ago seemed to have a certain reputation among international lawyers. For example, Elihu Lauterpacht commented on Ago’s character in a manner consistent with the Department’s view. Lauterpacht recalls that Ago was ‘a very strong personality’ and did not like ‘to be contradicted’.Footnote 90 Reportedly:
in the course of the Barcelona Traction case … we had been discussing the Delagoa Bay Railway case and he had presented a picture of the Delagoa Bay Railway case, which I thought was wholly at a variance with the true content of the case. So standing before the Court, I held the volume containing the report of the case in my hand and I went through it, passage by passage to indicate where Ago was at fault. He did not like that at all. When he got up to reply, he said, “[w]hen my young friend has read the Delagoa Bay Railway case as carefully as I have, he will know not to contradict me”, which was an assertion that produced a number of smiles on the faces of the Court and never appeared in the Court’s record.Footnote 91
Further diplomatic communications indicate a change of rhetoric. Vanden Heuvel, the Deputy US Permanent Representative to the United Nations, favourably regarded Ago’s credentials as ‘an international jurist’, and he suggested supporting Ago versus Manner (a Finnish candidate for the ICJ bench) in fear that the USSR might want to exercise political pressure on Manner if he were elected.Footnote 92 Heuvel concluded that ‘certainly MorosovFootnote 93 would not hesitate to try to dictate to Manner’.Footnote 94 The Manner–Ago dynamics certainly reflect the geopolitical reality of the Cold War. The US decided to support Ago over Manner simply because of its fear that Manner could be susceptible to Soviet pressures.
Personal qualities and temperament on the bench also constituted an important factor as they related to a candidate’s potential ability to persuade the bench. Madame Rosalyn Higgins has mentioned that ‘[c]ollegiality is a very important working principle of the Court’.Footnote 95 Particularly, Judge Higgins emphasized that she:
found dealing with a panel of very talented, opinionated jurists to be undoubtedly very, very challenging … they are people with strong views and very clever and a lot of politics does flow through these cases, and everyone comes with their own background and way of seeing things.Footnote 96
In other communications, such as those regarding the candidacy of Antonio Gomez Robledo, the Department also emphasized that ‘temperament’, together with education and work experience, make a candidate qualified for the ICJ seat.Footnote 97 The criteria above by no means present an exhaustive list of candidate characteristics that guarantees success in the election process. For instance, Mr. Salab El Dine Tarazi received rather unfavourable reviews in the communications, yet he obtained an absolute majority of votes in the General Assembly on the first ballot.Footnote 98 Similarly, Roberto Ago was successfully elected to the ICJ and served on the court from 1979 until 1995.Footnote 99
In terms of process, the diplomatic cables show that the US Department of State was determined not to see a radical change in the composition of the bench from the already existing pattern. The cables also demonstrate that the Western states could not agree on a single candidate for the WEOG seat and risked losing the seat permanently.Footnote 100 The United Kingdom and Australia, through Sir Vincent Evans and Ralph Harry respectively, played an instrumental role in mitigating the disagreements and rivalry between the WEOG states.Footnote 101 Reportedly, Ralph Harry, who was a chairman of the WEOG group at the time, even proposed the idea of blind straw drawing to agree on a single candidate for the WEOG seat.Footnote 102 This initiative was eventually dismissed by the Swiss and Finnish representatives.Footnote 103
Accordingly, it appears that the US was particularly concerned to preserve the status quo at the Court in terms of seat allocation for the UNSC permanent members and secure to the extent possible a pro-western orientation of the bench. Such an approach echoes Roberts’ thesis on patterns of dominance. Two contextual factors appear to shape the substantial informal criteria: the Marxist/Capitalist divide and not surprisingly, the North/South divide. Those informal factors reflect the geopolitical context in that period of time. Importantly, most factors do not engage anyhow with the notion of merit. The candidates’ temperaments and whether the candidates were familiar to the Department of State (i.e., previous engagement) seem to reflect the importance of personal networks, and ability to influence the bench in the intra-panel deliberations. The references to western education (as discussed) appear to be important because they guarantee that the candidates were steeped in particular approaches to what constitutes universal international law.
Overall, attention to these characteristics demonstrates that the Department invested only in support of ‘safe’ candidates who could support a particular vision of ‘universal’ international law. Hence, we can see the US insistence on maintaining the most ‘pro-Western’ bench possible by supporting the western-educated candidates who had previous engagement with the government or were part of the western expert circles. The emphasis on academic reputation (particularly if obtained in the West) is not surprising given its value to legitimize and reinforce commitment to a particular version of universality. Finally, it is also telling that the cables do not show any discussions on gender (for reasons of representation and parity) as a relevant criterion for the selection process.
3. The ideal court and politicization: Is politicization problematic?
Tension emerges because the theoretical ideal of a court is apolitical. Arguably, the ‘ideal’ court should be (i) above politics; and (ii) be able to identify and apply ‘universal’ international law; not some version of international law as advanced by however-powerful UN members. In Lauterpacht’s words, the judicial role is envisioned as a type of ‘priesthood in the service of an idea transcending any particular interest’.Footnote 104 The provisions of the Statute and the Charter arguably perpetuate such vision of an ideal court (and for that matter, of an ideal judge) through the set requirements in Article 2. Thus, from a perspective of the ideal court, attention to such extra-legal factors can be viewed as problematic because it threatens the apolitical nature of the Court. However, it is necessary to distinguish the politicization of the ICJ election process from the politicization of the Court.
Article 10 of the Statute puts the judicial selection at the epicentre of the political process since the candidates have to obtain absolute majority in both the UNGA and UNSC. Such structural arrangement renders the decision on who gets the seat at the bench political by nature. The question, however, remains how the choices are allocated and construed as a result of the political process in the selection and elections of the candidates. There are two possibilities. First is to focus on purely legal criteria (such as ‘high moral character’) as specified in the Statute and the Charter. Second is to identify ‘extra-legal’ criteria in selecting the candidates. When the election to the Court is viewed as a process and instrument to shape, produce, and define discourse, the second approach is likely to be adopted because (at least in the states’ view) only candidates with certain characteristics can be instrumental to promote a particular version of universality.
In principle, the political nature of the election process in the UNGA and UNSC is not problematic. Both the Statute and the Charter set the architecture in which the elections are subject to political processes, and thus, (under the current set-up) political bargaining is inevitable.Footnote 105 Such an arrangement was a result of the drafters acknowledging geopolitical reality in international relations.Footnote 106 As Ofer Eldar has explained, there are certain advantages and disadvantages in political bargaining.Footnote 107 For instance, one obvious example is the so called ‘package’ deals such as the one in 1955 when a large group of states were admitted as new UN members.Footnote 108 Apparently, ‘some of these states were not acceptable to the US, others could not individually obtain the support of the USSR. By bringing them together in a package it proved possible to gain general support’.Footnote 109 However, in some instances, the political nature of the election process to the ICJ can become problematic. Previously, the commentators have emphasized two occasions when this occurs. I propose to consider a third occasion that (in my view) makes politicization problematic.
The first instance is when most qualified candidates ‘miss’ the bench. For example, Gross expressed a concern that political seesawing in the context of the ICJ elections results in the situation when the most qualified candidates are not elected to the bench of the World Court because their states do not lobby extensively on their behalf or are strategically outnumbered.Footnote 110 In the context specific to the ICJ, Miriam Defensor Santiago of the Philippines, a candidate for the bench of the World Court in the 2007 elections has observed that ‘a candidate of a developing country must work twice as hard because the decision is not made on the individual’s merits and qualifications but the diplomatic clout of the country concerned’.Footnote 111 Accordingly, the political bargaining effectively becomes a tool for excluding some candidates and privileging others for reasons other than merit. This, arguably, explicitly contradicts the Charter and the Statute that (at least in spirit) privilege the merit of the candidates. Even if one does not accept this concern as relevant, exclusion has sociological consequences, in particular it creates the ‘homogenization’ (at least in terms of background) of international judiciary.Footnote 112
The second instance is when already appointed judges do not survive re-election because of the views they expressed while they were at the bench. For example, Jose Gustavo Guerrero of El Salvador, former President of the Permanent Court of International Justice and ICJ was re-elected by the General Assembly but blocked by the UK in the Security Council, reportedly ‘because Guerrero had voted against the United Kingdom’s position in the Anglo-Iranian Oil Company International Court of Justice decision of 1952’.Footnote 113 Later, Guerrero ‘[p]resented a paper at the Institut de Droit International on the need of international judges to be elected apolitically’.Footnote 114 In 1954, the Institute issued a resolution that called for ‘judges of the court [to be] elected primarily on the basis of their personal qualifications in accordance with article 2’.Footnote 115 In its resolutions, the Institute made several proposals on how to facilitate depoliticization. However, Judge Spiropoulos sceptically noted that it would be ‘chimerical to believe that one could eliminate political combinations in connection with the election of judges … the Assembly and the Council are political bodies in which political considerations prevail’.Footnote 116 The UN membership seemingly did not take the resolution (as well as subsequent resolution) to heart. The following election cycles show mutual trading of support and political bargaining to secure the ICJ seats.Footnote 117
This structurally undermines the requirement of independence of international judges. How can judges express their views independently if they fear not being re-elected for the next term? Arguably, such fear can result in a rather ‘cautious’ bench that demonstrably avoids major tensions and instead, follows the formalistic ‘state-centric’ view in the interpretation of international law, perhaps in fear of repercussions.Footnote 118 The most recent refusal of the Court to establish jurisdiction in the Nuclear Race case on rather formalistic grounds is an example of such conduct.Footnote 119 Such an approach does not help to address persisting global challenges, such as continuing nuclear proliferation.Footnote 120 In practice, it ends up, as Nico Kirsch puts it, ‘as a request to be realistic and not to bring the really big problems before the Court at all’.Footnote 121
Finally, I suggest a third instance when politicization becomes problematic. It occurs when the structural tilt in the system undermines a level playing field of political bargaining and, thus, skews the choice allocation by privileging certain states that value particular extra-legal factors over others. I will address the problem of the tilt in the next section.
4. On structural tilt, safeguards, and relevance for the most recent ICJ elections
This section examines the structural tilt within the UN system in the context of the ICJ election process, discusses safeguards and techniques to bypass the tilt and explains why this conversation is relevant for the most recent elections to the ICJ in 2017.
4.1 On tilt
The structural tilt of the UN system is impossible to overlook. For the purposes of vote trading and mutual trading of support, the tilt persists on three (sometimes overlapping) levels. The first level includes structural inequality among the UN members. Most evidently, it manifests itself in the positions of the five permanent members of the UNSC who possess veto powers in the UNSC. Veto power has pervasive influence since the permanent members can (and do) use their votes as a leverage in vote-trading.Footnote 122 Another aspect of the structural tilt is that the unwritten convention of ICJ seat allocation reinforces the tilt by ‘reserving’ five seats for the UNSC permanent members.
That is not to say that all of the permanent five de facto always have the upper hand in the process. For instance, the US position in the UN of the 1980s was ‘essentially impotent, without influence, heavily outvoted, and isolated’.Footnote 123 In contrast, the argument is that this arrangement prima facie creates permanent structural (and strategic) advantage in the vote-trading. Non-permanent UNSC members can also exercise significant influence.Footnote 124 For example, votes of Uganda and Togo as non-permanent UNSC members became crucial for the US administration to secure UNSC support for resolution on the Iran sanctions during Barak Obama’s presidency.Footnote 125 However, in this instance, tilt is only temporary since the non-permanent UNSC members cannot be elected to occupy the seats in consecutive terms.
The second level of tilt is that wealthy countries have more resources to afford to ‘buy’ the votes of the poor countries. For that purpose, lobbying can occur both ‘inside’ and ‘outside’ the UN system.Footnote 126 For instance, ‘the superpowers, especially the US, can buy poorer countries’ votes by utilizing their aid allocations or securing loans from the World Bank or the IMF’.Footnote 127 The third level manifests itself in the way that ‘current voting rules based on the equality of sovereigns provide extensive voting powers to many small countries on matters that they care little about … therefore, small countries have a strong incentive to sell their votes’.Footnote 128
The tilt does not necessarily put smaller or poorer states at a disadvantage. They can trade their votes ‘in return for promises of support on another matter of close concern to it, whether its own candidature in another election or a matter of substantive concern’.Footnote 129 Accordingly, they can trade their votes in return for other matters of national importance. However, it shows a lack of a level playing field in political bargaining. As a result of the tilt, wealthier and/or more powerful states can have more powerFootnote 130 to influence ‘construction’ of the ICJ’s bench through the election process. When the election process is understood as an instrument and procedure to influence, direct, and produce the discourse to define international law, such lack of a level playing field becomes potentially problematic because it boosts the candidates with extra-legal characteristics that matter to some states over others. This can result in the situation whereby some states can have, structurally, the upper hand in promoting their candidates over others.
4.2 Techniques to bypass the tilt
It would be a misconception to suggest that the tilt cannot be bypassed. The analysis of the literature on political bargaining in the UN context shows that states utilize a number of techniques to overcome the tilt. In the context of ICJ elections, two significant techniques are (i) ‘block voting’ and coalition building; and (ii) ‘masterful’ use of legal procedure.
With regards to the blocks and coalitions in the context of UNGA voting, Jeane Kirkpatrick, a former US Permanent Representative to the UN, explained that blocks can be political and geographical (or the overlap of the two). Their effectiveness and power depend on their ‘cohesion as well as size’.Footnote 131 She remarked that the South American block traditionally lacked cohesion to develop a common position and that ‘this lack of cohesion has very important legal consequences for them’.Footnote 132 She contrasted it with the African block that:
The Africans are extremely effective at UN politics … They always agree on common candidates and single candidates; it is a marvelously civilized system. Small African countries as well as large African countries take turns sitting in the Security Council and on all influential committees of the UN system.Footnote 133
Perhaps for this reason, African states have been successful in advancing their candidates for the ICJ seats (including in ‘overtaking’ the seat in the aftermath of the South West Africa decision of 1966). According to Kirkpatrick, coalition building represents another important technique that helps to secure votes. For instance, the African block used to vote consistently with the Arab block on certain issues that related to South Africa and Israel.Footnote 134 The US historically pursued a strategy of ‘single-issue’ politics to build coalitions around a particular issue. Another aspect of the US strategy was to split existing blocks and coalitions to prevent some undesirable decisions.
In some instances, states can utilize legal procedure for their advantage to secure desirable decisions.Footnote 135 For example, in the context of ICJ elections, states can choose to (i) take suspensions during the voting by secret ballot for additional lobbying; and (ii) strategically declare/withdraw the candidates late. McWinnie recalls that in the elections of 1975, the FRG declared its candidate (Judge Mosler) late to strategically manipulate the split of the Nordic block.Footnote 136 As a result of late entry, Mosler won the seat.Footnote 137Another example of ‘masterful’ use of procedure are the elections of 1954 when the President of the GA determined that an ‘absolute majority’ was necessary to secure the seat. Judge Pal of India was one vote short to obtain the seat.Footnote 138 The President of the Assembly, by fixing the election date on a Jewish religious holiday, ‘on which the Israeli delegation, which had decided to vote for Pal, would not be present, effectively determined the issue against the Indian candidate and in favour of the Pakistan candidate’.Footnote 139
In addition, states can also choose to lobby the UNGA or the UNSC to trigger the joint-conference mechanism under Article 12 of the Statute.Footnote 140 Under Article 12, if after a third round of voting, the seat remains unfilled, the UNSC or the UNGA can request the joint conference to be formed.Footnote 141 The UNSC and the UNGA will appoint three members of the joint conference each.Footnote 142 So far this procedure has never been used. Matthew Rycroft, the Permanent Representative of the United Kingdom to the United Nations, pointed out that:
[i]t is the view of the United Kingdom that this election would have been an ideal opportunity to use the mechanism envisaged by the Court’s own Statute to break the current deadlock. It is also the United Kingdom’s view, as it is of other delegations, that some thought needs to be given to this procedure before the next ICJ election in order that it might be used when it is clearly needed.Footnote 143
According to Bardo Fassbender, the United Kingdom hoped that the Joint Conference procedure will offer ‘a better prospect of success for the candidate supported by the Council’ as opposed to the repeated voting in the UNGA that, arguably, provides a strategic advantage ‘to the candidate preferred by the Assembly’.Footnote 144 Accordingly, strategic use of the joint conference can provide another procedural tool on how to bypass the tilt. However, in the 2017 elections, the UK Foreign Office reportedly decided to avoid triggering joint conference to support its candidate because it ‘would engender negative reactions, especially in the General Assembly’.Footnote 145 Lord Hannay added that ‘we would have probably lost quite a lot of influence in the process by being thought to be pretty selfish’.Footnote 146
4.3 On relevance for the most recent ICJ elections
In 2017, Judge Christopher Greenwood of the United Kingdom lost the election for the ICJ seat. Loss of the seat by Greenwood (a distinguished international lawyer) demonstrates the importance of extra-legal factors in the selection and election process. It is the first time in the Court’s history that the national of a permanent member of the UNSC is not occupying the Court’s seat. The UK Foreign Affairs Committee prepared a special report in which it characterized the loss of the seat as ‘bitterly disappointing’ and ‘a failure’.Footnote 147 In his testimony to the Parliament, Sir Iain Macleod has explained why loss of the seat can be problematic for the UK:
[t]he ICJ is the principal judicial organ of the UN. It is a prestigious organ. The fact that the UK is not on it is, without doubt, a blow—there is no question about that. The Court will be without a UK judge and without that influence. A lot of UK advocates appear before the Court, so it is not as if there is no influence from UK legal thinking. Some of the prominent advocates before the Court are British, so into the Court’s thinking there will still be the arguments that come from the common law system and from the expertise of the UK legal system.Footnote 148
The position, thus, remains that the presence of the judge at the Court results in influencing the thinking of the Court. The report emphasized that despite ‘extensive lobbying’, the UK diplomatic corps was not able to secure the seat.Footnote 149 The report intentionally does not reveal any techniques employed in the lobbying process in detail, however, the Memorandum from the Foreign and Commonwealth Office mentions that they employed ‘targeted lobbying of states known to be less favourable towards the candidate’.Footnote 150
However, the pledges the Foreign Office received did not materialize into actual votes during UNGA voting.Footnote 151 Lord Ahmad attributed this failure to a combination of factors. According to his testimony before the Committee, ‘there were certain countries that went with other countries, because of their association through the UN and the fact that one was a permanent representative. Other countries aligned themselves because they were from that particular region’.Footnote 152 As Lord Ahmad explained, one of the factors why the UK lost the seat might have been the fact that the Indian candidate ‘declared late’.Footnote 153 Another factor is ‘the change in mood across the whole of the UN in relation to P5 membership’.Footnote 154 To avoid such outcomes in future, Lord Ahmad proposed to ‘review’ the existing geographic conventions, and increase the efforts by different ministries across the board to lobby for the UK candidacy.Footnote 155
The report allows us to make a number of observations in light of our previous discussion. First, states continue trading votes and mutual assurances of support in the ICJ election process. These practices persist despite the previous calls of the Institute on International Law to elect judges on the basis of merit, not on any other grounds. Second, the UK has fought to preserve the convention on seat allocation, however, its persistence collided with the growing influence of the states in the UNGA who committed to subverting the convention of having the nationals of permanent five represented at the Court. Third, states continue to commit significant resources to securing a seat at the ICJ bench for their candidates. For this purpose, states arrange preliminary interviews for their candidates with some governments, outline possible options for vote trading, and strategically advertise candidates with particular characteristics. For example, as former ICJ Judge Kenneth Keith of New Zealand explained, his lobbying campaign lasted for over two years and ‘involved visits to more than 30 capitals as well as to New York three times’.Footnote 156 According to Keith, during one such visit when he met a government official, this official asked two questions: the first question related to the merits of his candidacy; the second question, however, directly examined options for the trade-offs (specifically, the question was ‘[w]hat is in it for us?’).Footnote 157 This experience demonstrates continued politicization of the election process of ICJ judges.
The discussion in this article is of relevance for most recent ICJ elections for a number of reasons. First, it shows continued politicization of the elections, i.e., election of the candidates on the basis of extra-legal factors other than merit. Second, it shows that (despite the tilt) even a UNSC permanent representative can fail to secure the seat. This supports the article’s suggestion that the tilt can be overcome through block voting, coalition building, and masterful use of legal procedure, including late declaration of the candidacy by the competing states.
5. Concluding Remarks
The ICJ elections are by nature political. It is difficult to imagine the circumstances in which states would not engage in old practices of vote trading to secure ICJ seats. In practice, it will mean that extra-legal characteristics of the candidates will always matter for the purposes of ICJ elections. The diplomatic cables demonstrate that such characteristics are likely to depend on the geopolitical context at a particular period of time. The UN Charter and the Statute of the Court structurally reinforce politicization by making the elections a subject of multi-stage processes, including the nominations by the national groups, and voting in the UNSC and UNGA by secret ballot. In principle, this approach is not problematic since the selection and appointment of judges often constitutes a subject-matter of prior political bargaining (including in the domestic legal systems). However, as this article has suggested, politicization can be problematic in a number of circumstances, including (i) when the most qualified candidate does not get to the bench; (ii) when an already elected judge does not survive re-elections; and (iii) due to the structural tilt that influences how choices in the political process are construed and allocated.
When the ICJ elections are viewed as a process and an instrument for directing and producing discourse on what constitutes ‘universal’ international law, who obtains access to the bench matters significantly because the election process becomes a tool for shaping a future outlook of the bench upon international law. Without a level playing field in the political process, such ‘shaping’ will create a situation in which only candidates with certain extra-legal characteristics are likely to obtain the seats. In this instance, international law will not reflect diversity of the views but will perpetuate sameness. It appears that to alter the status quo (as in 2017), states will have to develop and master the techniques to surpass the structural tilt, i.e., utilize the process to shape the outcomes since in the current geopolitical context the institutional reform of the UN is rather unlikely. The scholars who focus on the internal workings of the Court have to double their efforts (primarily through the qualitative research) to demystify the mechanics, techniques, and tactics used in the ICJ election process.
