13 The election procedure, by and large, follows the procedures contained in Article 17 CAT14 and in other human rights treaties.15 According to Article 7(1)(a) OP, primary consideration shall be given to the fulfilment of the requirements and criteria for an ideal composition of the SPT set out in Article 5 OP,16 namely gender balance, equitable geographic distribution, the representation of different forms of civilization and legal systems, a good mix of different professional backgrounds, and the individual qualification of the candidates as independent and impartial experts of high moral character with enough free time to serve the SPT efficiently. Since elections are held by secret ballot17 it is, however, difficult to ensure that all these criteria are in fact complied with. As the composition of the SPT during its initial phase showed, at least gender balance as well as equitable geographic and cultural distribution had not been achieved then. However, strong efforts were taken in this direction during recent years, and after the elections of 27 October 2016, thirteen out of twenty-five present SPT members are female and the geographical distribution of members seems to be quite balanced.
14 According to Article 7(1)(b) OP, the initial election had to be conducted no later than six months after the entry into force of the Protocol, ie no later than 22 December 2006. In fact, the first elections took place at the UN Office in Geneva on 18 December 2006.18
15 According to Article 7(1)(d) OP, elections shall be held at biennial meetings of States parties in Geneva. The presence of delegates from two-thirds of all States parties constitutes the required quorum, otherwise elections cannot take place.
16 From all the candidates nominated, those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States parties present and voting are elected. Each State party may vote for as many candidates as there are seats to be filled. If more than twenty-five candidates receive an absolute majority, only those who receive the largest number of votes are elected. If fewer than twenty-five candidates receive an absolute majority, additional balloting is required.19 If it should ever happen that two nationals of a State party receive an absolute majority, Article 7(2) provides, in a detailed manner, how this situation should be solved. It seems a little odd that this question has received so much attention in the text of Article 7 OP, whereas other more important questions such as how draws shall be resolved and whether abstentions shall be considered as voting or non-voting, were left open. Unfortunately, the RoP of States parties to the OP do not further elaborate on these issues.20
(p. 780) 17 On 18 December 2006, the election of the first ten members of the SPT took place at the UN Office in Geneva. Exactly ten of the fourteen candidates received the required absolute majority at the first ballot, whereas the remaining four candidates missed this requirement. Consequently, these ten candidates were elected and no further ballot was required. The States parties decided that the SPT would assume office on 1 January 2007. It was further decided by lot that Ms Casale, Mr Coriolano, Mr Hájek, Mr Lasocik, and Mr Rodriguez Rescia would serve for a term of two years (until 31 December 2008). The four-year terms of the other members were about to expire on 31 December 2010.21
18 At the third meeting of States parties on 28 October 2010, five members were to be elected to fill the vacancies of those members whose terms of office were about to expire on 31 December 2010. In addition, fifteen new members were to be elected in conformity with Article 5(1) OP, following the fiftieth ratification, which took place in September 2009. The OP itself does not stipulate any special election procedure for the election of the additional fifteen members. Accordingly, the regular provisions (Articles 5 to 9 OP) were applied and the election of the fifteen additional members coincided with the regular biennial elections to fill the vacancies of those experts whose mandates were about to expire at the end of 2010. Hence, the third meeting of States parties began first with the regular biannual election of the five members who were about to fill the upcoming vacancies; then it followed a second round of elections in order to elect the fifteen additional members. Pursuant to Article 9 OP,22 the five members elected at the first round were elected for a term of four years. The election of the additional fifteen members followed the manner in which the first ten members of the SPT were elected in 2006, also with regard to their terms of office. This was found to ensure the requirements set out in Article 7(1)(d) OP.
19 Thirty-one candidates had been nominated and accepted by the States parties. At the first ballot, none of the candidates had obtained an absolute majority. Thus, a second ballot became necessary. The voting was restricted to the candidates who had obtained the largest number of votes in the previous ballot, with the number of candidatures being limited to not more than twice the number of places remaining to be filled.23 The ten candidates who had obtained the largest number of votes in the first ballot were: Ms Definis-Gojanovic (16 votes), Mr Ginés Santidrián (21 votes), Mr Lam Shang Leen (11 votes), Ms Muhammad (14 votes), Mr Obrecht (13 votes), Mr Petersen (17 votes), Mr Pross (18 votes), Mr Sarre Iguíniz (17 votes), Mr Taylor Souto (19 votes), and Mr Villavicencio Terreros (12 votes).24 Having obtained the required majority at the second ballot, Mr Ginés Santidrián, Mr Obrecht, Mr Peterson, and Mr Taylor Souto were elected members of the SPT for a term of four years (until 31 December 2014). Since the number of candidates who had obtained the required majority was less than the number of members to be elected, a third ballot was to be held to fill the last remaining vacancy. The voting (p. 781) had been restricted to the two candidates25 who had obtained the largest number of votes in the previous ballot.26 With regard to the vote for the fifth replacement member of the SPT, fifty-six representatives of States parties to the OP had voted and fifty-three valid ballot papers had been counted. The representative of Mexico, supported by the representative of Germany, found that the phrase ‘representatives present and voting’ in Rules 11 and 12 of the provisional RoP27 meant representatives who had cast valid votes. Thus, he thought that Mr Sarre Iguíniz, having obtained twenty-eight votes, should have been elected member of the SPT. Although the present Senior Legal Adviser to the UN Office at Geneva stated that the secretariat did not share this interpretation, the (majority of) the representatives of States parties had wished to proceed in this manner. Thus, Mr Sarre Iguíniz had been elected the fifth replacement member of the SPT.28 Despite this, the representatives of States parties agreed that the standard procedure should be applied again in forthcoming rounds.29 In our opinion, the chosen approach did not correspond to the meaning of Article 7(1)(d) OP, as the term ‘present and voting’ clearly does not postulate valid, but cast votes.
20 Given that Article 6(1) and (2) OP encourages States parties to nominate up to two candidates, including one national of another State party, the election procedure outlined in Article 7(2) OP seems a little complicated, yet this provision will hardly ever be applied in practice.