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ELECTION OF JUDGES TO THE INTERNATIONAL COURT OF JUSTICE: PROPOSALS FOR REFORM WITHOUT AMENDING THE STATUTE
Published online by Cambridge University Press: 25 April 2024
Abstract
In November 2023 the United Nations (UN) General Assembly and Security Council elected (in one case, re-elected) five judges to the International Court of Justice. The electoral system is considered to be overly politicized and to pay lip service to the requirements that judges must be elected on the basis of their qualifications, regardless of their nationality, and that in the body as a whole, the representation of the main forms of civilization and the principal legal systems of the world should be assured. Several amendments to the system of nominations and elections have been proposed that would require a reform of the Court's Statute. This article proposes four measures that could be adopted without amending the Statute or encroaching on the prerogatives of national groups, UN organs or Member States: (1) ensure the representation of the principal legal systems, in part by promoting regional diversity on the bench; (2) remove the use of nationality as a factor in casual elections; (3) establish a vetting process and public hearings; and (4) promote a single vote for Security Council members. It argues that the measures proposed would lead to a change in the present culture of nominations and elections towards one that favours the qualification of the judges over political considerations.
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References
1 United Nations (UN), ‘Charter of the United Nations and Statute of the International Court of Justice’ (signed 26 June 1945, entered into force 24 October 1945) available at <https://treaties.un.org/doc/publication/ctc/uncharter.pdf> (UN Charter) (ICJ Statute).
2 Oyarzabal, MJA, ‘Les tractations électorales sont-elles évitables?’ in Thouvenin, JM and Hébert, J Joly (eds), La Cour internationale de Justice à 75 ans (Pedone 2023) 57–72Google Scholar.
3 ‘IDI Resolution on the Composition of the International Court of Justice’ (1952) 44(2) Annuaire de l'Institut de Droit International 474–5; ‘IDI Resolution on the Study of the Amendments to be Made in the Statute of the International Court of Justice’ (1954) 45(2) Annuaire de l'Institut de Droit International 296–9. See, also, ‘IDI Resolution on the Position of the International Judge’ (2011) 74 Annuaire de l'Institut de Droit International 124–7.
4 For an appraisal of the electoral system and main reform proposals, see generally Shaw, MN (ed), Rosenne's Law and Practice of the International Court 1920–2015 (Brill Nijhoff 2016) 363–99Google Scholar; Georget, P, ‘Article 4’ in Zimmermann, A and Tams, C (eds), The Statute of the International Court of Justice: A Commentary (Brill/Nijhoff 2019) 314Google Scholar; Hudson, MO, The Permanent Court of International Justice 1920–1942 (Garland Publishing 1974) 265–9Google Scholar. See also G Abi-Saab, ‘Ensuring the Best Bench: Ways of Selecting Judges’ in C Peck and RS Lee (eds), Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (Martinus Nijhoff Publishers/UNITAR 1997) 166; Amerasinghe, CF, ‘Judges of the International Court of Justice—Election and Qualifications’ (2001) 14 LJIL 335CrossRefGoogle Scholar; Keith, KJ, ‘International Court of Justice: Reflections on the Electoral Process’ (2010) 9 ChineseJIL 49Google Scholar; McWhinney, E, ‘Law, Politics and “Regionalism” in the Nomination and Election of World Court Judges’ (1986) 13 SyracuseJIntlL&Com 1Google Scholar; Brotóns, A Remiro, ‘Nominación y elección de los jueces de la Corte Internacional de Justicia’ in Gómez, EM Vázquez, Muñoz, MD Adam and Prieto, N Cornago (eds), El arreglo pacífico de controversias internacionales (Tirant lo Blanch 2013) 45Google Scholar; Robinson, DS, ‘The Role of Politics in the Election and the Work of Judges of the International Court of Justice’ (2003) 97 ASILPROC 277Google Scholar; MacKenzie, R, Malleson, K, Martin, P and Sands, P, Selecting International Judges: Principle, Process, and Politics (OUP 2010)CrossRefGoogle Scholar.
5 UN Charter (n 1).
6 ICJ Statute (n 1) art 69. Pursuant to art 108 of the UN Charter, ibid, amendments shall come into force for all members of the UN when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the members of the UN, including all the permanent members of the Security Council.
7 The current intergovernmental negotiations on the reform of the Security Council (officially on the ‘Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council’) have been ongoing in the UN General Assembly since at least 2007. The history and latest developments of the intergovernmental negotiations are available at <https://www.un.org/en/ga/screform/>.
8 See Shaw (n 4) 363–4.
9 ICJ Statute (n 1).
10 See, however, B Fassbender, ‘Article 9’ in Zimmermann and Tams (n 4) 378–85, arguing that art 9 contains an ‘appeal’ to the Member States to uphold the legitimacy and authority of the Court when deciding about its composition, rather than a ‘legal’ obligation.
11 For example, diverse traditions within or transcending legal systems—conservative/liberal/post-modern, positivist/naturalist, secular/religious, etc. See ibid 367–78.
12 Different arrangements have been made for the distribution of seats of other UN organs, not following the pattern of the Security Council, based on the nature of the organ, its function and other considerations; for example, for the Economic and Social Council (ECOSOC), another main organ of the UN like the ICJ, and for the Advisory Committee on Administrative and Budgetary Questions (ACABQ), a subsidiary body of the General Assembly. Also, the composition of the regional groups may occasionally vary; for example, Malta is considered to be a member of the WEOG for elections to the Security Council but a member of the APG for elections to the International Law Commission.
13 Shaw (n 4) 395–7; Fassbender (n 10) 369–70.
14 The representation of Latin America changed from four members in 1946 to one in 1993 and two in 1997; the representation of Africa increased from one member in 1946 to three in 1970.
15 The representation of Western Europe fluctuated from four members in 1946 to three in 2006 (as one seat swung to a non-European WEOG member) and two in 2018 (when a seat was lost to the APG).
16 See, however, Shaw (n 4) 397.
17 From 25 out of 46 cases filed with the ICJ between 1949 and 1978, six out of 52 cases between 1979 and 2005 (while the Court still had four Western European judges), three out of 42 cases between 2006 and 2018 (when Western European representation decreased to three judges), to four (one discontinued) out of 22 cases since 2019 (after the number of Western European judges was reduced to the current two)—although Western European countries have intervened in large numbers in the case of Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation: 32 States intervening) currently pending before the Court. See ICJ, ‘Contentious Cases’ <https://www.icj-cij.org/contentious-cases> (including terminated and pending cases).
18 Remiro Brotóns (n 4) 50. See also M Lachs, ‘Some Reflections on the Nationality of Judges of the International Court of Justice’ (1992) 4 PaceYBIntlL 49, 62–7.
19 Amerasinghe (n 4) 346–8.
20 McWhinney (n 4) 11–13, 18–19.
21 Abi-Saab (n 4) 171.
22 UN General Assembly Res 36/39 (18 November 1981) UN Doc A/RES/36/39, para 3.
23 Abi-Saab (n 4) 170.
24 Fassbender (n 10) 378–83. There are qualified international jurists in all five regional groups, so it is unjustified to presume that the allocation of ICJ seats by regions could lead to a lower quality of elected judges.
25 MacKenzie et al (n 4) 169.
26 ICJ Statute (n 1) (emphasis added).
27 Shaw (n 4) 367–8.
28 Keith (n 4) 50; Shaw (n 4) 368–9.
29 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.
30 Factors that may have determined the result include the UK's decision in 2016 to leave the EU (Brexit) which affected its solidarity with its future former partner, and the British position in relation to the request for an advisory opinion from the ICJ on the Chagos Archipelago in 2017 which deprived the UK of the African vote. See UN General Assembly Res 71/292 (22 June 2017) UN Doc A/RES/71/292; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95. However, some trace it back to the then Professor Greenwood's 2002 Memorandum which provided the basis for the UK's main justification for the use of force against Iraq in 2003. See UK House of Commons, Committee on Foreign Affairs, Memorandum by Professor Christopher Greenwood, CMG, QC, ‘The Legality of Using Force Against Iraq’ <https://publications.parliament.uk/pa/cm200203/cmselect/cmfaff/196/2102406.htm>, although the Memorandum was already public when he was elected judge in 2009.
31 The invasion by Russia of Ukraine in 2022 and the ongoing war in Europe has undoubtedly played a role in determining the election result, causing Russia to lose support in the UN General Assembly and Security Council where P5 solidarity—which is manifested in mutual nomination by P5 States’ respective national groups and also, potentially, in reciprocal votes—had traditionally prevailed.
32 However, see R Lavalle, ‘Nationality as a Factor in the Election of the Members of the International Court of Justice with Particular Reference to Occasional Elections’ (1996) 29 RBDI 625. See also Lachs (n 18) 49–68.
33 See J Dugard, ‘Article 13’ in Zimmermann and Tams (n 4) 409, 418.
34 See F Pérez Aznar, ‘Casual Vacancies in the ICJ: Law, Practice, and Policy’ (EJIL:Talk!, 7 September 2022) <https://www.ejiltalk.org/casual-vacancies-in-the-icj-law-practice-and-policy/>.
35 On the political factors that may have determined the results, see Lavalle (n 32) 628–9. In the other eight cases, the candidate of the same nationality as the deceased judge prevailed over the candidate(s) of a different nationality—Judge José Philadelpho de Barros e Azevedo of Brazil, who died in 1951, was succeeded by Judge Levi Fernandes Carneiro, Judge Salah El Dine Tarazi of Syria who died in 1980 was succeeded by Judge Abdallah Fikri El-Khani, Judge Nagendra Singh of India, who died in 1988, was succeeded by Judge Raghunandan Swarup Pathak, Judge Taslim Olawale Elias of Nigeria, who died in 1991, was succeeded by Judge Prince Bola Adesumbo Ajibola, Judge Roberto Ago of Italy, who died in 1995, was succeeded by Judge Luigi Ferrari Bravo, Judge Andrés Aguilar-Mawdsley of Venezuela, who died in 1995, was succeeded by Judge Gonzalo Parra Aranguren, Judge James Crawford of Australia, who died in 2021, was succeeded by Judge Hilary Charlesworth, and Judge Antonio Cançado Trindade of Brazil, who died in 2022, was succeeded by Judge Leonardo Nemer Caldeira Brant. In the remaining six of the 16 casual elections in ICJ's history, either no candidate of the nationality of the deceased or resigned judge was a contender—Judge José Gustavo Guerrero of El Salvador, who died in 1958, was succeeded by Judge Ricardo Joaquin Alfaro of Panama, Judge Abdel Hamid Badawi of Egypt, who died in 1965, was succeeded by Judge Fouad Ammoun of Lebanon, Judge Manfred Lachs of Poland, who died in 1993, was succeeded by Judge Géza Herczegh of Hungary, Judge Mohammed Bedjaoui of Algeria, who resigned in 2001, was succeeded by Judge Nabil Elaraby of Egypt, and Judge Awn Shawkat Al-Khasawneh of Jordan, who resigned in 2011, was succeeded by Judge Dalveer Bhandari of India—or the candidate of the same nationality ran uncontested—Judge Hisashi Owada of Japan, who resigned in 2018, was succeeded by Judge Yuji Iwasawa.
36 Judge Iwasawa's was the only casual election not involving a permanent member with no candidates of other nationalities in the ICJ's—and PCIJ's—history. See Pérez Aznar (n 34).
37 For example, Professor Linos-Alexandre Sicilianos from Greece obtained 71 votes against the Australian candidate holding the same nationality as the judge who died in 2021 (see ‘General Assembly Elects Judge to International Court of Justice’, UN General Assembly Press Release (5 November 2021) GA/12379 <https://press.un.org/en/2021/ga12379.doc.htm>), while Professor Marcelo Kohen from Argentina obtained 67 votes against the Brazilian candidate holding the same nationality as the judge who died the following year (see ‘General Assembly Elects Judge to International Court of Justice’, UN General Assembly Press Release (4 November 2022) GA/12466 <https://press.un.org/en/2022/ga12466.doc.htm>).
38 See Pérez Aznar (n 34). See also Lavalle (n 32) 631–2.
39 Lavalle (n 32), 631–2.
40 ICJ Statute (n 1).
41 ibid.
42 The national groups are composed of a maximum of four members of the PCA, selected by the States Parties of the Hague Convention (I) for the Pacific Settlement of International Disputes, art 44 (adopted 18 October 1907, entered into force 26 January 1910) (1907) UKTS 6, 1 Bevans 577, (1908) 2 AJIL Supp 43.
43 See McWhinney (n 4) 3–8; Georget (n 4) 321–8; MacKenzie et al (n 4) 84–98.
44 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.
45 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953, as amended) 213 UNTS 221, CETS 2013.
46 See ICC, ‘Report of the Bureau on the Establishment of an Advisory Committee on Nominations of Judges of the International Criminal Court’ (30 November 2011) Doc ICC-ASP/10/36, paras 1–4 <https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP10/ICC-ASP-10-36-ENG.pdf>.
47 ibid, para 12.
48 ICC ASP, ‘Terms of Reference of the Advisory Committee on Nominations of Judges of the International Criminal Court’ (6 March 2020) adopted by Res ICC-ASP/10/Res.5, and amended by Res ICC-ASP/13/Res.5, Annex III and Res ICC-ASP/18/Res.4, Annex II <https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/ASP.TOR.ACN.ENG.pdf>.
49 ibid, para 5 bis.
50 ICC ASP Res ICC-ASP/3/Res.6 ‘regarding the procedure for the nomination and election of judges’ para 12 bis, inserted by Res ICC-ASP/18/Res.4 on the review of the procedure for the nomination and election of judges (6 December 2019) Annex I <https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP18/ICC-ASP-18-Res4-ENG.pdf>.
51 ibid, para 12 ter.
52 Res ICC-ASP/18/Res 4, ibid, para. 1.
53 ICC ASP Res ICC-ASP/22/Res.3 ‘Strengthening the International Criminal Court and the Assembly of States Parties’ (13 December 2023) para 81 and Annex II <https://asp.icc-cpi.int/sites/default/files/asp_docs/ICC-ASP-22-Res3-AV-ENG.pdf>.
54 ibid, Annex II, para 3.
55 Council of Europe (COE) Committee of Ministers, ‘Guidelines of the Committee of Ministers on the selection of candidates for the post of judge at the European Court of Human Rights’ adopted 28 March 2012 at the 1138th meeting of the Ministers’ Deputies, CM Doc CM(2012)40-final (29 March 2012) as amended at the 1213th meeting (26 November 2014) by Decision CM/Del/Dec(2014)1213/1.5 <https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805cb1ac>. See also COE Parliamentary Assembly, Memorandum prepared by the Secretary-General of the Assembly ‘Procedure for the Election of Judges to the European Court of Human Rights’ (26 April 2023) Doc SG-AS (2023) 01Rev6 <https://rm.coe.int/procedure-for-the-election-of-judges-to-the-european-court-of-human-ri/1680aa8ddf>.
56 Memorandum, ibid, para 4.
57 Emphasis on the national selection procedure is explained by the fact that the ECtHR is composed of one judge per contracting party (ECHR, art 22), every State drawing up a list of three candidates for the post of judge (which must include at least one woman) from which the Assembly makes its selection.
58 See eg M Pena, ‘ICC Judicial Elections Reform: Some Progress but Still a Long Way to Go’ (International Justice Monitor, 15 January 2021) <https://www.ijmonitor.org/2021/01/icc-judicial-elections-reform-some-progress-but-still-a-long-way-to-go/>; K Lemmens, ‘(S)electing Judges for Strasbourg: A (Dis)appointing Process?’ in M Bobek (ed), Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts (OUP 2015) 95.
59 Proposals have been made to replace the current system of indirect nominations with nominations made directly by governments (E McWhinney, ‘The International Court as Constitutional Court and the Blurring of the Arbitral/Judicial Processes’ in S Muller and W Mijs (eds), The Flame Rekindled: New Hopes for International Arbitration (OUP 1994) 81, 83–4), by the PCA as a whole (A de Geouffre de La Pradelle (1954) 45(1) Annuaire de l'Institut de Droit International 471), by the ICJ (J López Oliván (1954) 45(1) Annuaire de l'Institut de Droit International 484) or by a procedure similar to that in place for nominations to the French Cour de Cassation which are entrusted to an advisory body of 12 members with diverse backgrounds (N Blokker and S Muller, ‘The 1996 Elections to the International Court of Justice: New Tendencies in the Post-Cold War Era’ (1998) 47 ICLQ 211, 215).
60 Convention for the Pacific Settlement of International Disputes (adopted 29 July 1899, entered into force 4 September 1900) (1901) UKTS 9, 1 Bevans 230.
61 Convention for the Pacific Settlement of International Disputes (n 42).
62 While governments may, when nominating members of the PCA, have the nomination of candidates in the ICJ elections in mind, the members of the PCA may be called—and often are—to sit as arbitrators and conciliators in inter-State, investor–State and other ‘mixed’ proceedings. However, all these functions would be better served by members who are independent from governments, and even the appointment of a representative of the government—such as the Foreign Ministry's legal adviser—would be an acceptable compromise to ensure that the government position is heard in decisions of the national group. On the composition of national groups, see MacKenzie et al (n 4) 69–73.
63 Lack of independence of national groups from the governments who appoint them and have the power to remove their members, and other problems arising from the inconsistent and obscure manner in which national groups operate, have been highlighted inter alia by Keith (n 4) 52–7, and McWhinney (n 4) 6.
64 Abi-Saab (n 4) 181. See also Remiro Brotóns (n 4) 51–2.
65 cf ‘IDI Resolution on the Position of the International Judge’ (n 3) art 1(3). See also MacKenzie et al (n 4) 139–40.
66 Rosalyn Higgins (1995, President 2006–2009), Joan E Donoghue (2010–2024, President 2021–2024), Hanqin Xue (2010–, Vice-President 2018–2021), Julia Sebutinde (2021–, Vice-President 2024–), Hilary Charlesworth (2021–) and Sarah H Cleveland (2024–).
67 Keith (n 4) 50, fn 3.
68 Kessedjian, C, ‘Gender Equality in the Judiciary—With an Emphasis on International Judiciary’ in Fornalé, Elisa (ed), Gender Equality in the Mirror (Brill/Nijhoff 2022) 195Google Scholar.
69 M Kohen, ‘Article 39’ in Zimmermann and Tams (n 4) 1007, 1013–15.
70 MacKenzie, R and Sands, P, ‘Judicial Selection for International Courts: Towards Common Principles and Practices’ in Malleson, K and Russell, PH (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (University of Toronto Press 2006) 213, 230–1Google Scholar.
71 Remiro Brotóns (n 4) 75 (translation from Spanish by the author).
72 ICJ Statute (n 1).
73 UN Charter (n 1) arts 9, 23.
74 Shaw (n 4) 393.
75 Abi-Saab (n 4) 174, 182.
76 See League of Nations Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee: June 16th–July 24th, 1920, with Annexes (Van Langenhuysen Brothers 1920) and the arguments made by M. Adatci (‘If one of the five great powers seated on the Council were excluded, the new institution [the PCIJ] would still be born’ at 118) and Lord Phillimore (‘If the Court did not include representatives of these [great powers] among its member, it would lack what in English is called “back bone”’ at 105).
77 The USA has been party to 25 ICJ contentious proceedings (nine as claimant and 16 as defendant), the UK to 15 cases (seven as claimant and eight as defendant), France to 16 cases (six as claimant and ten as defendant), the Soviet Union/Russia to nine cases (all as defendant) and China to none. The list is available at <https://www.icj-cij.org/list-of-all-cases>. Moreover, of the P5 States, only the UK has recognized the compulsory jurisdiction of the Court pursuant to art 36(2) of the ICJ Statute. See Declarations filed with the UN Secretary-General to that effect at <https://www.icj-cij.org/declarations>.
78 Abi-Saab (n 4) 174.
79 In the elections of 1987 (Judge Mohamed Shahabuddeen of Guyana), 1990 (Judge Raymond Ranjeva of Madagascar), 1993 (Judge Abdul G Koroma of Sierra Leone), 2011 (Judge Julia Sebutinde of Uganda) and 2014 (Judge Patrick Robinson of Jamaica), the candidates elected by the General Assembly were eventually elected by the Security Council except in the election of 2008 when Judge Abdulqawi Yusuf of Somalia received an absolute majority on the Council and succeeded in the Assembly. Before 1967, of the seven elections where a disagreement occurred between the General Assembly and the Security Council, in three the candidates elected by the Council prevailed (1946, 1956 and 1963), in another three the candidates elected by the Assembly prevailed (1957, 1960 and 1966), and in the final one a third candidate was elected by both organs (1948).
80 Keith (n 4) 59. See also Espósito, C, ‘Elección de jueces e independencia judicial en la Corte Internacional de Justicia’ in Rodríguez, J Díez-Hochleitner, Espósito, C, Sans, C Izquierdo and Torrecuadrada, S (eds), Principios y justicia en el derecho internacional – Libro homenaje al profesor Antonio Remiro Brotóns (Dykinson 2018) 315, 319–21Google Scholar.
81 See Hudson (n 4) 267. In 1920, the so-called great powers held four permanent seats in the Council of the League of Nations (with the possibility that a fifth great power would accept a permanent seat) which was then composed of representatives of eight States. The number of non-permanent members was first increased to six in 1922 and to nine in 1926. The members of the UN Security Council, of which five States are permanent members, also increased from 11 members in 1945 to 15 members in 1965.
82 In the 2017 election the seat occupied by Judge Greenwood—a national of a WEOG State—swung to the APG with the re-election of Judge Bhandari of India. See n 15.
83 Abi-Saab (n 4) 182.
84 See, inter alia, A Damianou, ‘Three Necessary Reforms for UN Security Council Legitimacy’ (Global Risks Inside, 23 October 2015) <https://globalriskinsights.com/2015/10/three-necessary-reforms-for-un-security-council-legitimacy/>. See above (n 7).
85 For example, in 2013 France pledged not to use its veto in cases of mass atrocities. See Ministère de l'Europe et des Affairs Étrangères, France Diplomatie, Presse, ‘Pourquoi la France veut encadrer le recours au veto au Conseil de sécurité des Nations unies’ (updated February 2021) <https://www.diplomatie.gouv.fr/fr/politique-etrangere-de-la-france/la-france-et-les-nations-unies/pourquoi-la-france-veut-encadrer-le-recours-au-veto-au-conseil-de-securite-des/>; Permanent Mission of France to the United Nations in New York, Press Room, ‘5 Things to Know about France and the Veto Power’ (last modified 28 March 2023) <https://onu.delegfrance.org/5-things-to-know-about-France-and-the-veto-power>.
86 For example, in the last 20 years some countries that had never before served in the Security Council have announced their intention to apply for future Security Council membership: Qatar and Slovakia (2006–2007), Croatia (2008–2009), Bosnia and Herzegovina (2010–2011), Azerbaijan and Guatemala (2012–2013), Luxembourg (2013–2014), Lithuania (2014–2015), Kazakhstan (2017–2018), Equatorial Guinea (2018–2019), Dominican Republic (2019–2020), Saint Vincent and the Grenadines and Estonia (2020–2021), Albania (2022–2023), Mozambique and Switzerland (2023–2024), Mauritius (2024–2025), Latvia and Montenegro (2025–26), Kyrgyzstan (2026–2027), Tajikistan (2027–2028), Uzbekistan (2028–2029) and Armenia (2031–2032). However, membership of the Security Council and of the ICJ differs, eg membership of the Council runs for two years while that of the Court runs for nine, and, of 193 UN Member States, 61 have never been in the Council as opposed to 144 that have never had one of their nationals in the Court.
87 Georget (n 4) 320.