Election of Judges to the International Tribunal for the Law of the Sea

2017 will be a busy year for elections to international tribunals. There will be elections later this year to elect five Judges of the International Court of Justice and six judges of the International Criminal Court (see here). Earlier this week, the States Parties to the United Nations Convention of the Sea elected seven Judges to the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges and elections for seven judges are held every three years. As with the ICJ and the ICC, ITLOS judges serve for a term of 9 years and may be re-elected [Art. 5(1)ITLOS Statute]. The purpose of this post is to simply to report the results of the 2017 ITLOS election and to make a few observations about possible trends in elections to international tribunals.

The States Parties re-elected two judges currently on the ITLOS bench: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). The five new judges taking up their seats on the 1st of October 2017 will be: Mr Oscar Cabello Sarubbi (Paraguay), Ms Neeru Chadha (India), Mr Kriangsak Kittichaisaree (Thailand), Mr Roman Kolodkin (Russian Federation), and Ms Liesbeth Lijnzaad (The Netherlands).  The full list of candidates for the elections can be found here. Judges are elected where they obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties [Art. 4(4), ITLOS Statute]

An interesting development in the current ITLOS election is the failure of two serving judges: Judges Joseph Akl (Lebanon) and Rudiger Wolfrum (Germany) to be re-elected.  The qualifications and experience of these judges are beyond doubt. However, both have been on ITLOS since its formation in 1996 and there might be a feeling that 21 years is long enough for anyone. I have heard it said at the UN there is a feeling among states that though there are no formal term limits for judicial positions, treaty bodies and the like, it is not healthy for individuals to be there for too long. It was a surprise to some (myself included) when the late Sir Nigel Rodley was not re-elected to the Human Rights Committee last year and perhaps the long period of service on the Committee was a factor. This is an issue that states should take into account in nominating candidates.

Two of the seven judges elected are women (Neeru Chadha and Ms Liesbeth Lijnzaad, who both recently represented their states in the Enrica Lexicie and Artic Sunrise proceedings before ITLOS.). Though it is pleasing to see the number of women judges go up from just the single female judge (Judge Elsa Kelly) on the  current ITLOS bench, 3 out of 21 is still not a particular good number. The statutes of the ICJ and ITLOS are perhaps products of their time in speaking about geographical diversity, representation of the principal legal systems of the world,  but not gender diversity. The ICC Statute, by contrast in Art. 36(8)(a)(iii) requires the States Parties to take into account, in addition to those other factors “a fair representation of female and male judges”. And so they have. There is a far greater representation of women judges on the ICC than on either ITLOS or the ICJ. Perhaps it is time to make formal changes to the processes by which international judges are elected as a prod to achieving fairer gender representation.

We have previously discussed the high number of ICJ judges who were previously members of the International Law Commission. Two of the judges elected this week – Kriangsak Kittichaisaree (Thailand) Roman Kolodkin have served on the ILC.

As the ITLOS Statute requires that equitable geographical distribution be assured among the Members and that there should be at least three Judges from each geographical group as established by the General Assembly of the United Nations [Arts. 2(2) & 3(2) ITLOS Statute], elections for ITLOS are held by reference to geographical groups. With two exceptions, there was more than one round of voting before a conclusion was reached as to who was elected from each group. The two exceptions were with regard to the African and the Eastern European groups. With regard to the former Judges Boualem Bouguetaia and Judge José Luís Jesus  were re-elected (out of 3 candidates) in a single round. With regard to the latter Roman Kolodkin (not to be confused with Judge Anatoly Kolodkin, who was an ITLOS Judge from 1996-2008, and who has a huge oil tanker vessel named after him) was the sole candidate and elected in one round.