International Court of Justice to Hold Special Elections and Update on the Elena Kagan Nomination

International Court of Justice to Hold Special Elections to Replace Retiring Judges

Recently, Justices Shi Jiuyong of China and Thomas Buergenthal of the United States announced their resignations from the International Court of Justice (“ICJ”), both before fulfilling the nine-year terms they were elected to. As a result, two special elections for their replacements will be held in June and September of this year respectively.

The ICJ, at times referred to as the World Court, is the central judicial branch of the United Nations. Its purpose is to handle the disputes of member states and advise UN bodies. For instance, Australia recently announced that it will challenge Japan’s whaling practices before the ICJ.

The ICJ is composed of 15 Justices who serve terms of nine years. If a judge resigns before that period has ended, the position is filled through a special election. The replacement judges will fulfill the remainder of the retiring judge’s terms.

The Statute of the International Court of Justice (“Statute”) provides the framework under which the ICJ functions. It is comprised of 70 Articles, dealing with, for example, organization (Articles 2 to 33) and procedure (Articles 39 to 64). Article 2 states:

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, or are jurisconsults of recognized competence in international law.

Article 3 holds that only one nominee per state can be elected to the ICJ. Nominees are normally submitted by the national groups of the Permanent Court of Arbitration, an international dispute resolution body. A consolidated list of nominees is then submitted to the General Assembly and Security Council for election by a majority of all members.

Traditionally, nominees from the permanent members of the Security Council have been guaranteed election. Both China and the US are permanent members therefore it is likely that a nominee from those two countries will be elected to replace the retiring Chinese and American judges.

Presently, the ICJ is an all-male judicial body. In fact, there has only been one permanent female judge. This could change as the US has nominated Joan E. Donoghue to serve the remainder of the term of retiring Judge Thomas Buergenthal. Donoghue is currently the US State Department’s Principal Deputy Legal Adviser. In this role she advises Secretary of State Hillary Clinton in matters dealing with international law. She taught law at the University of California-Berkeley, Georgetown, and the George Washington School of Law. She earned her law degree from Berkeley.

China’s nominee is Xue Hanqin, Chinese Ambassador to the Association of Southeast Asian Nations (ASEAN), Legal Counsel to the Ministry of Foreign Affairs and Member of International Law Commission. Hanqin has an LL.M and J.S.D. from Columbia. She has served as the Chinese Ambassador to the Netherlands and in various legal roles throughout the Chinese Ministry of Foreign Affairs. She has taught law at Wuhan University School of Law and Beijing University.

The nomination of two women is a welcome addition to a presently all-male institution.

Elena Kagan and Judicial Activism

Earlier, TheCourt.ca commented on a replacement for retiring United States Supreme Court Justice John Paul Stevens. As readers may be aware, the President chose US Solicitor General Elena Kagan, and with confirmation hearings scheduled to begin Monday, a brief update on her nomination is warranted.

In recent weeks, the media has reported on documents related to Kagan’s tenure under former President Bill Clinton, served in part as Associate White House counsel. In response, Republicans on the Senate judiciary committee are threatening to boycott the hearings unless they are given time to review the documents. They are also requesting access to 1600 documents not released for reasons of confidentially. As well, the Sunlight Foundation, an organization dedicated to government transparency and accountability, has provided access to Kagan’s emails from her White House days.

Failed Supreme Court nominee Robert Bork has argued that Kagan is not qualified to be a Supreme Court Justice. According to reports, Kagan’s admiration for former Israeli Justice Aharon Barak is seen by Bork as indicative of her activist philosophy.

The typical refrain from the Republicans is that a Democratic nominee will inevitably engage in judicial activism once on the bench. In other words, they will interpret and apply the law with regard to their own personal and public policy views. Conservative judges, however, will supposedly demonstrate judicial restraint.

Judicial activism was measured in a study by Paul Gewirtz and Chad Golder and summarized in an op-ed in the New York Times. According to the authors of the study, judicial activism can be measured by counting the numbers of times a USSC judge has voted to strike down a congressional law. Overall, Gewirtz and Golder came to the conclusion that the more “liberal” justices were the least activist:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %

Kennedy 64.06 %

Scalia 56.25 %

Rehnquist 46.88 %

O’Connor 46.77 %

Souter 42.19 %

Stevens 39.34 %

Ginsburg 39.06 %

Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more “liberal” – Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens – vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.