Two women are expected to bring a breath of fresh air to the International Court of Justice. Mrs Xue Hanqin from China and Mrs Joan Donoghue from the US replace Judge Shi Jiuyong and Judge Thomas Buergenthal who both resigned before their terms expired. The women come to an ICJ that has been predominantly the bastion of men. Their wealth of international experience qualifies them for one of the most challenging positions on the world stage.
By Dr. Olivier Ribbelink
What is remarkable about the two new judges is not just that they will bring down the average age of the members of the ICJ, or that one is very well known in the world of international law and the other less so, but also, strangely enough, that they are women.
In the history of the ICJ virtually all judges have been male. There have only been two female ad-hoc judges, that is, judges representing a State in a specific dispute when that State did not have a national on the Bench, namely Suzanne Bastid (France, 1980s), and Christine van den Wyngaert (Belgium, 2000).
The only regular female judge was Dame Rosalyn Higgins (1995-2009, of which 2006-2009 as President). Although it may be too early to say, perhaps their nomination forebodes a new attitude towards the ICJ and international law.
The ICJ has 15 members who are elected by the General Assembly (GA) and the Security Council (SC). Candidates must obtain an absolute majority in both: 97 votes in the GA and eight votes in the SC. Every three years five judges are elected to serve a nine-year term.
When a position becomes available due to premature resignation, or the death of a judge while in office an election is called to fill the vacancy.
In regular elections both the GA and SC must continue in session until all five judges have obtained absolute majorities in both organs.
Sometimes a series of voting sessions have been necessary. Judge Buergenthal and Judge Shi represented Permanent Members of the SC, and so will their successors.
Ever since the first elections of Judges of the ICJ in 1946 the Permanent Members of the SC have had a national on the Bench. It has been suggested that this is because the SC and the ICJ have the same number of Members. Thus, a candidate nominated by a Permanent Member is for all practical purposes assured of election.
According to the ICJ Statute, Judges must be ‘of high moral character’ and ‘possess the qualifications required in their respective countries for appointment to the highest judicial offices’ or ‘jurisconsults of recognized competence in international law. And the Court as a whole must represent ‘the main forms of civilization’ and ‘the principal legal systems of the world’ .
Membership of the ICJ is similar to that of the SC. There are three judges for Africa, two for Latin America, three for Asia (including China), five for Western Europe and Other States (including the United States, United Kingdom, and France), and two for Eastern Europe (including Russia).
Candidates are nominated by national groups in the Permanent Court of Arbitration (PCA), and States not members of the PCA should constitute a similar national group.
A national group consists of four eminent jurists that are put forward by their state as potential candidates in an arbitration procedure before the PCA, which is also housed in the Peace Palace in The Hague. National Groups are expected to consult with their highest court of justice and legal faculties.
Both China and the US have national groups in the PCA.
The election of Mrs Xue Hanqin took place on 29 June 2010. She is an experienced diplomat and eminent international lawyer and a member of the International Law Commission of the UN. She also served as China’s ambassador to the Netherlands from 2003-2008.
The election of Mrs Joan Donoghue will formally take place on 9 September. She is currently Principal Deputy Legal Adviser in the US State Department.
Both new judges have experience with the ICJ. Last year Mrs Xue pleaded on behalf of China in the Oral Hearings for the Kosovo Advisory Opinion, and Mrs Donoghue acted as attorney-advisor for the US in the Nicaragua case in the 1980s.