Abstract
This chapter accounts for the situations when the composition of the Court is altered out of consideration for the parties’ choices, through the appointment of a judge ad hoc or by the constitution of a Chamber for particular cases. It argues that the Courts’ judicial function has moulded the role of the judge ad hoc, which cannot be equated to the one of party-appointed arbitrators. Conversely, the rules relating to ad hoc Chambers, which emphasise the arbitral features of the ICJ, can and should be interpreted in such a way as to safeguard the Court’s judicial function.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
Once again, arbitral practice offers many examples where this model was not followed—including arbitral institutions whose president was appointed by one of the parties. See Lauterpacht (1997), pp. 371–372, and the comments by Schwebel, ibid., pp. 391–392.
- 3.
Cf. the observations of Elihu Root supporting the inclusion of Article 27 of the Root-Phillimore project, which became Article 31 of the Statute (PCIJ, Advisory Committee of Jurists, 24th Meeting, Annex 2, Procés Verbaux of the Meetings of the Committee, p. 538). See further Guillaume (1999).
- 4.
- 5.
Tanaka (1975), p. 864.
- 6.
- 7.
This requirement seems less important whenever disputes between States and individuals are involved, notably in the context of human rights courts. See further Forlati (in press).
- 8.
For some examples cf. Rosenne (2006), p. 1098.
- 9.
Press release of 15 December 2010, www.foreignminister.gov.au/releases/2010/kr_mr_101215.html, accessed 20 Sept 2013.
- 10.
Cf. Whaling in the Antarctic, order of 6 February 2013, para. 21. The ICJ did not uphold Japan’s request (see further below, Chap. 14).
- 11.
Judgment of 13 December 1999, ICJ Reports 1999, p. 1045.
- 12.
See Article VIII of the special agreement signed in Gaborone on 15 February 1996.
- 13.
The intention to designate a judge ad hoc should be notified to the Court as soon as possible, according Article 35(1) of the Rules of Court. This provision further stipulates: ‘If the name and nationality of the judge selected are not indicated at the same time, the party shall, not later than two months before the time-limit fixed for the filing of the Counter-Memorial, inform the Court of the name and nationality of the person chosen’.
- 14.
See Kooijmans (2012), p. 535. However, it should be noted that the appointment of a judge ad hoc does by no means imply acceptance of the Court’s jurisdiction (ibid.).
- 15.
See Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), judgment of 13 July 2009, ICJ Reports 2009, p. 213 at 219 par. 4. Article 4 of the 1922 Rules of Court, requiring that the judge ad hoc be a national of the appointing State, was derogated from a number of times and abrogated in 1936: cf. Guyomar (1983), pp. 203–204.
- 16.
- 17.
See for an example Arndt (1970).
- 18.
- 19.
Judge ad hoc Lauterpacht has maintained that a judge ad hoc has ‘the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected – though not necessarily accepted – in any separate or dissenting opinion that he may write’ (Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, order of 13 September 1993, dissenting opinion, ICJ Reports 1993, p. 325 at 409). This stance is considered to be an accurate description of the judge ad hoc’s role.
- 20.
Thierry (2000), p. 289.
- 21.
- 22.
Land, Island and Maritime Frontier (El Salvador/Honduras), Composition of the Chamber, order of 13 December 1989, separate opinion, ICJ Reports 1989, p. 165. The order concerned the inclusion in the Chamber of Judge ad hoc Torres Bernárdez, who was to take the place of Judge ad hoc Virally.
- 23.
Ibid., p. 172.
- 24.
Emphasis added.
- 25.
Article 36(6) stipulates: ‘Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfill the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of the present Statute’. The preference for persons ‘who have been nominated as candidates as provided in Articles 4 and 5’ [Article 31(2)] is rarely respected in practice. Cf. Rosenne (2006), p. 1089; and, for other aspects, Scobbie (2005), pp. 426–427.
- 26.
- 27.
Discussing the cases mentioned above, note 26, Rosenne notes that ‘there is no further published record of any other formal decision by either Court as to the appropriateness of the choice of a person to sit as judge ad hoc. If either Court has had instances of this, it has dealt with them discreetly and without publicity’: Rosenne (2002), p. 231. Cf. also Thirlway (2001), p. 39, note 2, as regards an appointment that was not fully in keeping with Article 17 of the Statute: ‘discreet unofficial soundings through the President of the Court showed that the other party would have no objection, and the appointment was made’.
- 28.
See Bedjaoui (2009), pp. 26–27. The appointment of a person having the same nationality as a Member of the Court never raised difficulties: see Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahariya) (Tunisia v. Libyan Arab Jamahariya), ICJ Reports 1985, p. 192.
- 29.
See S. Rosenne, ‘Practice Directions’, p. 231ff., for some examples. Cf. further M. Bedjaoui, ‘L’egalité’, p. 26, for a discussion of the ‘mirror situation’ that arose in Territorial and Maritime Dispute (Nicaragua v. Colombia), where a former President and a former Registrar of the Court acted as counsel to Colombia.
- 30.
The text of the Practice Directions is available on the Court’s website, www.icj-cij.org. The final part of this Practice Direction is discussed below, Chap. 5.
- 31.
See Crawford J, ‘The International Bar’, speech delivered at the ESIL Research Forum on International Law as a Profession, Amsterdam, 25 May 2013. This comment is not reproduced in the written paper, Crawford (2013).
- 32.
See the critical remarks of S. Rosenne, ‘Practice Directions’, specifically as regards the limitation to the choice of agents.
- 33.
Practice Direction VII was adopted on 7 February 2002 and formally did not affect choices or designations made by the parties before the said date. This notwithstanding, some judges ad hoc designated before 2002 stepped down: see Rosenne (2006), p. 1091, note 64.
- 34.
See above, Sect. 3.2.
- 35.
Decision of 30 November 2011, (2012) ILM 51, p. 350 at 370., para. 138. Generally on the independence of international judges see Mahoney (2008).
- 36.
Decision of 30 November 2011, p. 371, para. 151.
- 37.
Ibid., pp. 369–370, para. 136.
- 38.
These considerations seem stronger in the framework of investor-State arbitration: when private parties are involved alongside States, there requirement that there should be no appearance of bias is enhanced and justifies more stringent limitations to sovereign discretion in choosing arbitrators.
- 39.
See Admission of a State to the United Nations, advisory opinion of 28 May 1948, separate opinion of Judge Azevedo, ICJ Reports 1948, p. 72, para. 1.
- 40.
Ibid.
- 41.
ICJ Reports 1971, pp. 25ff., paras. 35–39. Cf. however the separate opinions of Judges Petrén (pp. 128ff.), Oneyama (ibid., p. 139) and Dillard (ibid., pp. 152ss.) and the dissents of Judges Fitzmaurice (ibid., pp. 308ff.) and Gros (ibid., pp. 324ff.).
- 42.
- 43.
- 44.
Cf. again Thirlway (2000), p. 178.
- 45.
The Permanent Court had decided already that ‘there was no occasion for it to pronounce upon this question unless officially requested to do so’ in the case of the Austro–German Customs Regime, advisory opinion of 5 September 1931, Series A/B, No. 41, p. 40.
- 46.
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, advisory opinion of 29 April 1999, ICJ Reports 1999, p. 62. In Mazilu, Article VIII (Section 30) of the Convention on the Privileges and Immunities of the United Nations did not come into play because it had been the object of a reservation by Romania (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, advisory opinion of 15 December 1989, ICJ Reports 1989, p. 177ff.). See further below, Sect. 10.4.
- 47.
See Benvenuti (1985), pp. 19–20.
- 48.
In the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application by Nicaragua for Permission to Intervene, Nicaragua was permitted to intervene ‘as a non party’; hence, it could not avail itself of ‘the rights (…) which attach to the status of a party’ (judgment of 13 September 1990, ICJ Reports 1990, p. 92 at 111, para. 42) including the right to designate a judge ad hoc. This conclusion was not called into question by later case law.
- 49.
Interestingly, in Haya de la Torre Cuba was defined as ‘intervening Party’, but did not seek to appoint a judge ad hoc: see Haya de la Torre (Colombia v. Peru), judgment of 13 June 1951, ICJ Reports 1951, p. 71 at 72. Also Poland had waived any such right in the Wimbledon case: cf. Scobbie (2005), p. 432. The problems relating to the appointment of judges ad hoc in Chamber proceedings will be discussed below, Sect. 4.3.
- 50.
- 51.
- 52.
Protocol signed in Bonn on 2 February 1967, in North Sea Continental Shelf, Pleadings, I, 10.
- 53.
See the two orders of 17 April 2013.
- 54.
See the order on counter-claims, of 18 April 2013, para. 8.
- 55.
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, ICJ Reports 1973, p. 49 at 51, para. 7.
- 56.
See again Thirlway (2000), pp. 165, 170.
- 57.
South West Africa Cases (Ethiopia v. Union of South Africa; Liberia v. Union of South Africa), order of 20 May 1961, ICJ Reports 1961, p. 13 at 14.
- 58.
The decision was taken by a majority vote and notified to the parties, but not adopted in the form of an order: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, judgment of 27 February 1998, ICJ Reports 1998, p. 9 at 13, para. 9. cf. on this Article 37 of the Rules of Court.
- 59.
See, for a sharp criticism of this decision, the joint declaration of Judges Bedjaoui, Guillaume and Ranjeva appended to the judgment on the preliminary objections, ICJ Reports 1998, p. 32ff. Cf. further Guillaume (1999), p. 341.
- 60.
Legality of Use of Force (Serbia v. Germany), 15 December 2004, ICJ Reports 2004, p. 720 at 727, para. 16. This is in keeping with the decision taken in other parallel cases, not to allow the judges ad hoc appointed by the respondents to sit in the phase relating to jurisdiction. See further below, Sect. 4.2.5.
- 61.
The distinction is put forward by Thirlway (2000), p. 170.
- 62.
- 63.
Rosenne (2006), p. 1089.
- 64.
However, judges ad hoc should take part to any decision on the merits of an application for revision: Zimmermann and Geiss (2012), p. 1527.
- 65.
Cf. Continental Shelf (Tunisia/Libya), Application by Malta for permission to intervene, 14 April 1981, ICJ Reports 1981, p. 6, para. 8; cf. further Thirlway (2000), pp. 170–171. More problems arise when intervention takes place in proceedings referred to Chambers: cf. Rosenne (2006), pp. 1104–1105. See further below, Sect. 4.3.
- 66.
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, order of 22 September 1995, ICI Reports 1995, p. 288.
- 67.
- 68.
Lockerbie (Libya v. United Kingdom), ICJ Reports 1998, p. 9 at 13, para. 9 (emphasis added).
- 69.
See the order of 10 September 2003, ICJ Reports 2003, p. 149.
- 70.
See Serbia v. Belgium, ICJ Reports 2004, p. 284, para. 6, p. 285, para. 10 and pp. 286–287, paras. 17–8.
- 71.
Ibid., para. 18. Emphasis added.
- 72.
See the critical remarks of Judge ad hoc Kreća in his separate opinion, ibid., pp. 416ff., paras. 65–67.
- 73.
Cf. again Scobbie (2005), p. 462.
- 74.
This suggestion is made by Kooijmans (2012), p. 506.
- 75.
Apart from the Chamber for summary procedures (Article 29), which is still provided for by the current Statute, the PCIJ Statute envisaged Chambers for dealing with labour cases (Article 26) and with cases concerning traffic and telecommunications (Article 27). Both articles indicated that Chambers should be selected, so far as possible, with due regard to the provisions of Article 9 (that is, they should represent the main forms of civilisation and the principal legal systems of the world). No similar indication is included in the ICJ Statute.
- 76.
Chapter 3.
- 77.
- 78.
A Member of the Court at the time when the 1972 version of the Rules of Court was adopted expressly compared ad hoc Chambers to arbitral tribunals: Jiménez de Aréchaga (1973), p. 3.
- 79.
Only six cases were submitted to Chambers for particular cases so far.
- 80.
Gulf of Fonseca, order of 28 February 1990, dissenting opinion, ICJ Reports 1990, p. 18 at 40–41.
- 81.
Rosenne (2006), p. 1075, acknowledging, however, that ‘much uncertainty still surrounds the attitude of the Court to the institution of the ad hoc chamber and the precise degree of control which the parties can exercise over its formation’ (ibid., p. 1077).
- 82.
The Treaty, which was formally separate from the special agreement, is reproduced in ICJ Pleadings, Gulf of Maine Case, I, p. 7.
- 83.
Article III.
- 84.
ICJ Pleadings, Gulf of Maine Case, p. 3.
- 85.
Collier (1996), p. 369, contending that in this decision and in the one taken in Gulf of Fonseca ‘the separation between arbitration and judicial settlement was reduced to vanishing point’.
- 86.
See in particular the dissenting opinion of Judge Morozov in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), order of 20 January 1982, ICJ Reports 1982, p. 3 at 12.
- 87.
See Thirlway (2001), p. 49.
- 88.
The special agreement stipulated that the Chamber would be ‘composed of three members, with the consent of the Parties, who will express this in a joint form to the President of the Court, this agreement being essential for the formation of the chamber’ (certified translation from the original Spanish, ICJ Pleadings, Land Island and Maritime Dispute, p. 10).
- 89.
Cf. the dissenting opinion appended by Judge Tarassov to the order of 28 February 1990 in Gulf of Fonseca, ICJ Reports 1990, p. 13.
- 90.
Jennings (2002), p. 901.
- 91.
Annex VI, United Nations Convention on the Law of the Sea, UNTS 1833, p. 3 (emphasis added).
- 92.
Dupuy (2013), p. 66, discussing the examples of the ‘two inter-African disputes relating to two former colonies of France, that were brought before a Chamber, were pleaded exclusively in French, on the basis of documentation that largely constituted legislative text and regulations based on what is called “le droit d’outre-mer”, the analysis of which was facilitated by a good knowledge of the general characteristics and peculiarities of French public law by the judges’: the reference is to the Frontier Disputes (Burkina Faso/Mali) and (Benin/Niger). Moreover, the arguments taken from the travaux préparatoires of the Statute of the PCIJ (cf. in particular the dissenting opinion of Judge Shahabuddeen in Gulf of Fonseca, ICJ Reports 1990, pp. 19ff.) do not seem compelling because chambers for particular cases were not envisaged in the text: see Valencia-Ospina (1996), p. 511.
- 93.
- 94.
- 95.
Jiménez de Aréchaga (1973), p. 3.
- 96.
Cf. Palchetti (2012), p. 498.
- 97.
Palchetti (2012), p. 497.
- 98.
- 99.
- 100.
- 101.
- 102.
References
Abi-Saab G (1996) The International Court as a world court. In: Lowe V, Fitzmaurice M (eds) Fifty years of the International Court of Justice, essays in honour of Sir Robert Jennings. Cambridge University Press, Cambridge, pp 3–16
Arangio-Ruiz G (1962) Corte internazionale di giustizia. In: Enciclopedia del diritto, vol X. Giuffré, Milano, pp 1037–1048
Arndt K (1970) Die Wirkung der Amtsniederlegung eines nationalen ad hoc-Richters für seine Partei sowie auf die Stellung des von der Gegenseite benannten ad hoc-Richters. Zeitschrift 30:542–545
Bedjaoui M (2009) L’égalité des États dans le procès international, un mythe? In: Liber amicorum Jean-Pierre Cot – Le procès international. Bruylant, Bruxelles, pp 1–27
Benvenuti P (1985) L’accertamento del diritto mediante i pareri consultivi della Corte internazionale di giustizia. Giuffré, Milano
Collier JG (1996) The International Court of Justice and the peaceful settlement of disputes. In: Lowe V, Fitzmaurice M (eds) Fifty years of the International Court of Justice, essays in honour of Sir Robert Jennings. Cambridge University Press, Cambridge, pp 364–372
Costantino B (1975) Il giudice ad hoc nell’attività consultiva della Corte internazionale di giustizia. Comunicazioni e Studi 14:235–266
Cot J-P (2012) Article 68. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C (eds) The Statute of the International Court of Justice – a commentary, 2nd edn. Oxford University Press, Oxford, pp 1669–1684
Crawford J (2013) The international bar: essence before existence? ESIL 2013 5th research forum: international law as a profession conference paper no. 11/2013. Available at SSRN: http://ssrn.com/abstract=2364104 or http://dx.doi.org/10.2139/ssrn.2364104
Dupuy P-M (2013) Recourse to the International Court of Justice for the purpose of settling a dispute. In: Boisson de Chazournes L, Kohen MG, Viñuales JE (eds) Diplomatic and judicial means of dispute settlement. Nijhoff, Leiden, pp 61–69
Forlati S (in press) Il ruolo del giudice ad hoc nel processo dinanzi alla Corte internazionale di giustizia. In: Cortese B (ed) Studi in onore di Maria Laura Picchio Forlati. CEDAM, Padova
Guillaume G (1999) La ‘cause commune’ devant la Cour internationale de justice. In: Yakpo E, Boumedra T (eds) Liber amicorum Mohammed Bedjaoui. Kluwer, The Hague, pp 325–341
Guyomar G (1983) Commentaire du Règlement de la Cour internationale de Justice – Adopté le 14 Avril 1978. Pedone, Paris
Hudson MO (1943) The Permanent Court of International Justice 1920–1942. Macmillan, New York
Jennings R (2002) The differences between conducting a case in the ICJ and in an ad hoc arbitration tribunal – an inside view. In: Ando N, McWhinney E, Wolfrum R (eds) Liber amicorum judge Shigeru Oda. Kluwer, The Hague, pp 893–909
Jiménez de Aréchaga E (1971) Judges ad hoc in advisory proceedings. Zeitschrift 31:697–711
Jiménez de Aréchaga E (1973) The amendments to the rules of procedure of the International Court of Justice. Am J Int Law 67:1–22
Kolb R (2012) General principles of procedural law. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C (eds) The Statute of the International Court of Justice – a commentary, 2nd edn. Oxford University Press, Oxford, pp 871–908
Kolb R (2013) The International Court of Justice. Hart, Oxford
Kooijmans P (2012) Article 31. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C (eds) The Statute of the International Court of Justice – a commentary, 2nd edn. Oxford University Press, Oxford, pp 530–542
Lammasch H (1914) Die Lehre von der Schiedsgerichtsbarkeit in ihrem ganzen Umfange. Kohlhammer, Berlin
Lauterpacht E (1997) The role of ad hoc judges. In: Peck C, Lee RS (eds) Increasing the effectiveness of the International Court of Justice. Nijhoff/UNITAR, The Hague, pp 371–378
Mahoney P (2008) The international judiciary – independence and accountability. Law Pract Int Courts Tribunals 7:313–349
Makowski J (1931) L’organisation actuelle de l’arbitrage international. Collected Courses 36:263–384
Oellers-Frahm K (1990) Überlegungen anläßlich der Zulassung der Intervention Nicaraguas im Streit zwischen El Salvador und Honduras – Urteil der Kammer vom 13.9.1990. Zeitschrift 50:795–811
Palchetti P (2012) Article 26. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C (eds) The Statute of the International Court of Justice – a commentary, 2nd edn. Oxford University Press, Oxford, pp 474–501
Rosenne S (1999) Article 31 of the Statute of the International Court of Justice revisited. In: Dupuy R-J (ed) Mélanges en l’honneur de Nicolas Valticos – Droit et justice. Pedone, Paris, pp 301–317
Rosenne S (2002) International Court of Justice: practice directions on judges ad hoc; agents, counsel and advocates; and submission of documents. Law Pract Int Courts Tribunals 1:223–245
Rosenne S (2006) The law and practice of the International Court of Justice 1920–2005. Nijhoff, Leiden
Salvioli G (1941) Tutela dei diritti e degli interessi internazionali. CEDAM, Padova
Scerni M (1938) La procédure de la Cour permanente de justice internationale. Collected Courses 65:561–682
Schwebel S (1999) National judges and judges ad hoc. In: Dupuy R-J (ed) Mélanges en l’honneur de Nicolas Valticos – Droit et justice. Pedone, Paris, pp 319–329
Scobbie I (2005) ‘Une héresie en matière judiciaire’? The role of the judge ad hoc in the International Court. Law Pract Int Courts Tribunals 4:421–464
Tanaka K (1975) Independence of international judges. Comunicazioni e Studi 14:855–871
Thierry H (2000) Au sujet du juge ad hoc. In: Armas Barea CA et al (eds) Liber amicorum in memory of Judge José Maria Ruda. Kluwer, The Hague, pp 285–289
Thirlway H (2000) The law and procedure of the International Court of Justice 1960–1989, Part Eleven. Br Year B Int Law 71:71–180
Thirlway H (2001) The law and procedure of the International Court of Justice 1960–1989, Part Twelve. Br Year B Int Law 72:37–181
Valencia-Ospina E (1996) The use of chambers of the International Court of Justice. In: Lowe V, Fiztmaurice M (eds) Fifty years of the International Court of Justice, essays in honour of Sir Robert Jennings. Cambridge University Press, Cambridge, pp 503–527
Valticos N (2003) Pratique et éthique d’un juge ad hoc à la Cour internationale de Justice. In: Ando N, McWhinney E, Wolfrum R (eds) Liber amicorum Judge Shigeru Oda. Kluwer, The Hague, pp 107–116
Verhoeven J (1983) À propos de la fonction de juger en droit international public. In: Gérard P, Van de Kerkhove M, Ost F (eds) Fonction de juger et pouvoir judiciaire. Transformations et déplacements. Publications des Facultés Universitaires Saint Louis, Bruxelles, pp 447–468
Zimmermann A (1990) Ad hoc-Kammern des Internationalen Gerichtshofes und Intervention – Die Entscheidung im Streitfall vor dem IGH zwischen El Salvador und Honduras (Land, Island and Maritime Frontier Dispute). Zeitschrift 50:646–660
Zimmermann A, Geiss R (2012) Article 61. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C (eds) The Statute of the International Court of Justice – a commentary, 2nd edn. Oxford University Press, Oxford, pp 1497–1528
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Forlati, S. (2014). The Composition of the Bench in Particular Cases. In: The International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-06179-5_4
Download citation
DOI: https://doi.org/10.1007/978-3-319-06179-5_4
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-06178-8
Online ISBN: 978-3-319-06179-5
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)