Introduction
On Wednesday 12 November 2025, the United Nations General Assembly (UNGA) and Security Council (UNSC) elected Professor Phoebe Okowa to fill the vacancy at the International Court of Justice (ICJ) occasioned by Judge Abdulqawi Ahmed Yusuf’s resignation. Two current members of the International Law Commission (ILC), Professor Okowa and Professor Charles Chernor Jalloh, actively campaigned for the bench in this closely contested election.
As this election underscores, ILC membership is often viewed as a stepping stone to The Hague. Indeed, many members of the present bench previously served on the ILC. In May, then-Ambassador Mahmoud Daifallah Hmoud of Jordan, a former member and Chair of the Commission, was elected in the ICJ casual elections to complete the term of Judge Nawaf Salam. In the last regular election held in 2023, former and then-serving ILC member Bogdan-Lucian Aurescu and former member Dire Tladi were elected; Ahmed Amin Fathalla, another ILC member, was also a candidate. In next year’s regular triennial ICJ elections, current and former ILC members standing include Okowa, Jalloh and the United Kingdom’s nominee, Professor Dapo Akande.
While the ICJ casual elections have been extensively discussed (e.g., here and here), the ILC casual vacancy process is less canvassed. The election of an ILC member to the ICJ this week will trigger a casual election within the Commission. This post examines the procedures and practices for ILC casual elections, drawing comparisons with the regular elections, as well as the ICJ’s. It then highlights the institutional opacity surrounding the process and makes a brief case for reform.
ILC Casual Elections: Procedures and Practice
The ILC casual vacancies’ procedures and practices, both at the nominations and elections stages, have been marked by considerable institutional opacity and informality. The applicable provision for casual vacancies is Article 11 of the ILC Statute which provides that “the Commission itself shall fill the vacancy,” having due regard to Article(s) 2 and 8 that prescribe the individual qualifications, nationality limits and the overall representation of legal systems and civilisations. However, the Statute does not prescribe a nomination procedure for filling a casual vacancy. At the eleventh session (1959), the Commission itself, rather than the UNGA, decided that candidates may be proposed by the Commission’s own members in addition to Governments since Article 11 “contains no reference to article 3 requiring nominations by Governments”. Thus, in practice, the members of the Commission have the power both to nominate as well as elect new members to fill the vacancy. This is done in an internally decided timeline, after which the results would be circulated by the Secretariat and published in the Commission’s annual report.
The lack of fixed timelines for nominations and elections, as well as the Secretariat’s handling, underscores the process’s informality. Since 1960, the Secretariat has compiled a list of candidates, but the list is not determinative of the ballot. Late nominations can be introduced orally by the Chair shortly before the vote, as in 2002 when a second candidate was added too late for an addendum and was ultimately elected. Elections may occur on short notice where a vacancy arises during, rather than in advance of, a session, as with the vacancy occasioned by Huikang Huang’s resignation last year.
Procedure at the meeting stage compounds these concerns. Although the Commission once held such elections in public in 1952, yet since then it has consistently voted in closed sessions (with the notable exception of a casual election in 1995). No summary records of the private meetings are available. This fragmented and largely non-public documentation, coupled with the possibility of last-minute additions, provides little basis to assess candidates’ merits and impedes due consideration of qualifications. This process of internal elections and their limited transparency is surprising, especially given the ILC’s esteemed reputation. This issue has been salient in the present quinquennium, exemplified by two casual elections in 2024: Alina Orosan’s succession of Bogdan Aurescu, and Xinmin Ma’s succession of Huikang Huang.
Comparative Perspectives: ILC and ICJ Elections
The regular ILC elections provide a useful point of comparison. Members in the regular cycle are elected by States in the UNGA, following fixed, publicised dates and lengthy, highly-scrutinised campaigns. The discrepancy between the external, State-driven procedure for regular elections and the internal, member-driven procedure for vacancies is difficult to justify, given that both result in an elected member joining the Commission.
The ICJ casual elections process also provides stark contrast. ICJ judges, including for casual vacancy positions, are elected not by their own members but by UN Member States. Elections are held on fixed and publicised dates following campaigns. The ICJ’s elections may have their own deficiencies and politics (explored in the myriad posts linked above: e.g., here and here), but ICJ judges can only fill the vacant seat in a highly specific, extraordinary circumstance, i.e., when seats remain unfilled after three UNGA and UNSC meetings, and a subsequent unsuccessful joint conference per Article 12(3) of the ICJ Statute (see commentary here). It is highly unlikely that this provision will be resorted to; in past deadlocks, an election process simply proceeded to a fourth meeting and eventually concluded.
Why It Matters: the Legitimacy Challenge
The opaque nature of ILC casual elections presents considerable institutional challenges. First, it fails to provide sufficient time for nominations and thorough scrutiny, potentially affecting the calibre of the candidates and hindering the integrity of the selection process. This is because it denies members of the Commission and nominating Member States adequate time for identification, nominations, scrutiny of qualifications that candidates must possess in accordance with Article 8 of the Statute. Consequently, this procedural deficit risks undermining the overall quality of the expert membership of the Commission.
The second consideration is representation. As Gradoni observes, all ILC casual elections were filled by men, with the lone exception of Conceptión Escobar Hernández (since the publication of the post, Alina Orosan has also been elected). While the issue of gender representation is symptomatic of a systemic gender imbalance issue present generally in the ILC—a matter extending beyond the scope of this post—the obscure nature of the nomination procedure reinforces existing biases. This is because the informal, member-driven process relies heavily on the present homogenous internal networks, or “The Old Boys’ Club” of international law (see, for example, discussion here), creating an institutional barrier for qualified women and underrepresented groups to be nominated. Closed sessions and limited public documentation limit the external scrutiny and accountability that can promote representation, and create the risk or the speculation of insider preference or the strategic resignations. The potential for expedited elections on short notice also reduces the opportunity for broad outreach to identify diverse candidates, exacerbating the systemic imbalance.
Third, like in the ICJ’s casual elections, an elected member may be more likely to secure re-election by virtue of their prior election and the ensuing opportunity to contribute within the Commission. The demerits of this practice (particularly, ‘distorted incentives’) are discussed here. This is compounded by ILC membership often serving as a precursor to the ICJ. In this vein, the ILC’s casual election procedures and practices must consider the critical responsibilities held by its members in the broader context. These members significantly influence the codification and progressive development of international law, and their potential to profoundly affect international law is even greater should they later serve as a judge.
Fundamentally, these issues contribute to the Commission’s legitimacy. The ILC’s election practices must embody transparency and reasoned decision-making in line with its responsibility to uphold the international rule of law. This is particularly salient given the current UN liquidity crisis. For the first time in its history, the ILC’s 76th session this year was held in a condensed format, convening only once instead of its customary two meetings (see report, paras 440-444). This compressed calendar has already forced the deferral of several items on the programme of work, impacting the completion of its output. Maintaining the confidence of UN Member States in the ILC is therefore necessary for securing sufficient funding necessary to carry out the Commission’s vital mandate.
The Way Forward
Comprehensive reform of the ILC’s casual vacancy process is too substantial to be explored in one post. This concluding section instead proposes some incremental improvements and tentative reflections for further reform.
As a preliminary point, the premise that ILC casual vacancies must be filled immediately with streamlined procedures due to their unexpected nature warrants scrutiny. As extensive campaigns for ICJ casual vacancies demonstrate, even judicial vacancies are not treated as requiring perfunctory filling. More fundamentally, Article 11 of the ILC Statute requires that casual vacancies be filled with regard to Articles 2 and 8 regarding qualifications and representational requirements, which necessitates extensive consideration.
Against this backdrop, the ILC should first improve transparency within the existing Article 11 framework. Steps have been taken: Since 2021, the Secretariat has made an indicative list of nominations public prior to elections. For nominations, the ILC can further improve its methods of work by disclosing the source(s) of nominations, clarifying who may nominate in a formalised manner, and establishing fixed timelines to preclude last-minute nominations. On elections, the Commission may consider returning to public elections (as was the practice before 1954) or publicly announcing balloting results, and establishing fixed timelines for the entire process. Finally, the Commission’s annual report to the UNGA could detail the processes, including the nominated candidates, their regional distribution, the timeline followed, and procedural issues that arose. This creates an institutional record for future practice and reform proposals.
Beyond incremental measures, one may consider amending Article 11 to subject ILC casual elections to State-led procedures of rigour comparable to other elections, including the ICJ’s, while ensuring that such procedures remain tailored to the Commission’s institutional setting (for example, without implicating the UNSC in the process, since ILC’s mandate falls solely within the UNGA’s remit). As Article 11’s travaux indicates, the choice of an ILC‑driven casual elections model rested on pragmatic rather than principled considerations linked to the conditions of 1947—slower communications and less frequent UNGA sessions—which are less persuasive today. Reform is further supported by the two institutions’ comparable esteem, the closely aligned substantive requirements for ILC and ICJ membership set out in Article 2 of their respective Statutes, and the already similar standards for the two bodies’ regular elections. A State-led process for ILC casual elections may strengthen alignment of the Commission’s outputs with States’ needs, which is crucial for sustaining trust during the current liquidity crisis. This option is thus worth exploring.
Ultimately, the integrity of the ILC’s electoral processes is the foundation of the Commission’s persuasive authority and legitimacy. Whether through incremental or more fundamental improvements, these reforms are critical to preserving the ILC as an esteemed institution whose output embodies the international rule of law it is mandated to promote.
