Abstract
The International Court of Justice, as successor to the old, Permanent Court of International Justice of the between-the-two-World-Wars era, is constituted, under the United Nations Charter, as “the principal judicial organ of the United Nations”.1 The provisions as to selection of the Court’s judges are established in the Court’s Statute. The Court is to consist of “fifteen members, no two of whom may be nationals of the same state”;2 and these are to be elected by the U.N. General Assembly and Security Council,3 from a list of persons “nominated by the national groups in the Permanent Court of Arbitration” or by ad hoc national groups specially appointed by their governments for that purpose.4 As to the qualifications of the judges, the Court Statute stipulates that 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 recognised competence in international law.”5
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Notes
United Nations Charter, article 92.
Statute of the International Court of Justice, article 3 (1).
Ibid., arts. 4 (1), 10 (1) and (2).
Ibid., art. 4 (1) and (2).
Ibid., art. 2.
Elias, Report, in Judicial Settlement of International Disputes (Mosler and Bernhardt, eds.),(1974),p. 19.
Court Statute, art. 24 (1), (2), and (3).
South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6.
A second judicial vote that would almost certainly also have been with the seven judges favouring the Court’s exercising jurisdiction, was temporarily lost with the death of Judge Badawi during the course of the hearings: his successor in the resulting partial election, Judge Ammoun, was elected after the conditional closing of the Court’s hearings in South West Africa. Second Phase, but would have been eligible, nevertheless, to participate in the written and judgment phase. Judge Ammoun, (whether or not under pressure is not clear), chose not to do so. See, generally, Torres Bernárdez, “Resignations at the World Court”, in International Law in a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dinstein and Tabory, eds.) (1989), p. 953, p. 975.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.
I.C.J. Reports 1971, at pp. 18–19.
Ibid., p. 3.
Ibid., p. 6.
Ibid., p. 9.
Ibid., p. 309.
Ibid., p. 324.
Court Statute, art. 17 (2): “No member [of the Court] may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity.”
Compare the analogous controversy over the question of judicial disqualification for alleged “interest”, in Comparative, national (West German) constitutional law, in the so-called Party Financing case: Decision of 2 March 1966, 20 B Verf GE 9 (1966) (Second Senate) (the “judicial disqualification” issue); Decision of 19 July 1966, 20 B Verf GE 56 (1966) (Second Senate) (the substantive, “Party Financing”, issue). And see Friesenhahn, “Zur Ablehnung und Selbstablehnung eines Richters des Bundesverfassungsgericht wegen Besorgnis der Befangenheit”, Juristenzeitung, (1966) p. 704; and see the present author’s Supreme Courts and Judicial Law-Making. Constitutional Tribunals and Constitutional Review (1986), p. 39.
Court Statute, art. 31 (1).
Ibid., art. 31 (2).
I.C.J. Reports 1971, pp. 299, 308–9.
Ibid., pp. 25, 26–7.
Ibid., p. 25.
Elias, in Judicial Settlement of International Disputes (Mosler and Bernhardt, eds.,) (1974), p. 23.
U.N. General Assembly Resolution 36/39, (para. 3), 18 November 1981.
I.C.J. Reports 1966, p. 6.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 169; Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392; Merits, Judgment, I.C.J. Reports 1986, p. 14.
Court Statute, art. 4.
von Mangoldt, “Arbitration and Conciliation”, in Judicial Settlement of International Disputes (Mosler and Bernhardt, eds.), (1974), p. 417.
36 Stat. 2199, T.S. no. 536, 1 Bevans 577.
32 Stat. 1779, T.S. no. 392, 1 Bevans 230.
Rapport du Conseil administratif de la Cour permanente d’Arbitrage (1985), p. 4.
Ibid., p. 8 et seq.
Rapport du Conseil administratif de la Cour permanente d’Arbitrage (1988), p. 4, p. 13 et seq.
Court Statute, art. 2.
Ibid., art. 6.
Dominican Republic, Ecuador, Paraguay, Switzerland.
Austria (2), Brazil, El Salvador, Ecuador, France, Hungary, Italy, Japan, Poland, Spain. Appointments dating back to the 1960s extended, at that time, to almost half the states having formally-constituted National Groups, including the Soviet Union and Great Britain.
The members of the Soviet National Group — for the 1984 regular, triennial Court elections and again for the 1987 regular, triennial Court elections, all held academic-legal posts, but, in the Soviet tradition of cumulating professional-legal functions, also had substantial Governmental advising and counselling experience. The U.S. National Group, for 1984 and again for 1987, comprised (with one change in personnel) the then current Legal Adviser to the State Department and two former Legal Advisers, plus one practising lawyer. The French National Group, unchanged as between 1984 and 1987, comprised a Professor who was also a Member of the International Law Commission of the U.N., the Legal Adviser to the Foreign Ministry (who changed professional-legal hats, in late 1987, when he became a Judge of the International Court), plus two national judges. The British Group in 1984 was composed of the British Judge on the International Court, plus a former Legal Adviser to the Foreign Ministry, and two national judges; in 1987, one of the national judges had been replaced by another former Legal Adviser to the Foreign Ministry.
U.N. General Assembly A/42/589, A/42/590; Security Council S/19156, S/19157; 8 October 1987.
See, generally, Lee and McWhinney, “The 1987 Elections to the International Court of Justice”, Canadian Yearbook of International Law, vol. 25 (1987), p. 379.
U.N. General Assembly A/43/1002, Security Council S/20552, 6 April 1989; A/43/1002/Rev. 1,S/20552/Rev. 1,18 April 1989.
Ibid.
Court Statute, arts. 4, 6.
Ibid., arts. 4(1), 7 (2), 10(1).
Ibid., art. 10(2).
Covenant of the League of Nations, art. 14.
Court Statute, art. 9.
Elias, Report, in Judicial Settlement of International Disputes (Mosler and Bernhardt, eds.)(1974),p.23.
Ibid., p. 24.
Ibid.
The discussion that follows draws upon the author’s detailed study, “Law, Politics and ‘Regionalism’ in the Nomination and Election of World Court Judges”, Syracuse Journal of International Law and Commerce, vol. 11 (1987), p. 1.
And see, generally, Rosenne, The International Court of Justice. An Essay in Political and Legal Theory (1961); Documents on the International Court of Justice (Rosenne, ed.) (1974).
I.C.J. Reports 1966, p. 6.
See the comments by Elias, in Judicial Settlement of International Disputes (Mosler and Bernhardt, eds.) (1974), pp. 26–7.
Judge Shahabuddeen’s scientific-legal publications, going back to the early 1970s, included The Rôle of the Lawyer in a Developing Guyana (1974); Towards Industrial Justice in Guyana (1974); Constitutional Development in Guyana 1621–1978 (1978); Nationalisation of Guyana’s Bauxite. The Case of Alcan (2nd ed., 1981); From Plantocracy to Nationalisation. A Profile of Sugar in Guyana (1983); Long Though the Night (on the subject of the human condition in Southern Africa and Colonial Guyana (1986); and other works.
Bedjaoui, in La juridiction internationale permanente (Philip, ed.), (1987), p. 73 et seq. 51. Ibid., p. 75.
See, for example, in contemporary reformulation, Kokkini-Iatridou, “The Tertium Comparationis in the Micro-Comparative Research”, in Law in East and West, Recht in Ost und West (Nakamura, ed.) (1988), p. 231.
Supreme Courts and Judicial Law-Making, Constitutional Tribunals and Constitutional Review (1986), p. 34 et seq.
See, generally, Briggs, The International Law Commission (1965), p. 54 et seq.; Rosenne, ‘The International Law Commission, 1949–1959, “ British Year Book of International Law (1960), p. 122 et seq.
See, generally, the present author’s discussion, United Nations Law Making (1984), p. 96 et seq.; Ramcharan, The International Law Commission. Its Approach to Codification and Progressive Development of International Law (1977), p. 38 et seq.; El Baradei, Franck and Trachtenberg, The International Law Commission. The Need for a New Direction (Unitar) (1981).
U.N. General Assembly Resolution A/RES/36/39, 20 November 1981 (“Enlargement of the International Law Commission: Amendments to Articles 2 and 9 of the Statute of the Commission.”)
U.N. General Assembly, A/41/PV.71,3 December 1986.
Court Statute, art. 10 (2).
See, for example, the 1981 regular, triennial elections (the most recent occasion on which the British and French seats were up for election) when, with a total of one hundred and fifty-five ballots cast, in the U.N. General Assembly, an excellent French candidate received one hundred and twenty-seven votes, and an equally excellent British candidate was down to one hundred and seven votes. In the Security Council, with fifteen ballots cast, the French candidate received eleven votes, and the British candidate ten votes. Both were elected. 36 U.N. GAOR (48th plen. mtg.), p. 6; U.N. Doc. A/36/PV.48 (1981); 36 U.N. SCOR (2306th Mtg.), p. 1, U.N. Doc. S/36/PV 2306 (1981).
As to the crucial procedural rulings in the General Assembly, consult Rosenne, The International Court of Justice (1961), p. 136.
U.N. General Assembly/Security Council, A/43/1002/Rev. 1, S20552/Rev. 1, 18 April 1989.
Ibid. (Belgium, Canada, Finland, France, Federal Republic of Germany, Greece, Ireland, The Netherlands, Sweden, U.S.A.)
See U.N. Charter, arts. 53, 107.
Japan, after having unsuccessfully contested the partial election of 1956 produced by the death of the incumbent Nationalist Chinese judge, nominated the distinguished and long-serving Chief Justice of the Supreme Court of Japan, Kotaro Tanaka, for the regular, 1960 elections to the Court, and Tanaka was elected. West Germany, after its long-delayed admission to the United Nations in 1973, presented Professor Hermann Mosler, (who had been an ad hoc judge named by the West German Government for North Sea Continental Shelf (I.C.J. Reports 1969, p. 3)), as its candidate in the 1978 regular elections to the Court, and Mosler was elected.
Elias, in Judicial Settlement of International Disputes (Mosler and Bernhardt, eds.) (1974), at p. 26.
Court Statute, art. 5 (2).
The disillusionment among De Visscher’s admirers as to his electoral defeat was evidently considerable. See the comments made, almost four decades later, by ex-Judge Gros (France): Gros, “La Cour internationale de Justice 1946–1986: les reflexions d’un juge”, in International Law at a time of Perplexity. Essays in Honour of Shabtai Rosenne (Dinstein and Tabory, eds.) (1989), p. 289, p. 293.
LCJ. Reports 1966, p. 6.
Ex-Judge Gros (France) recalled, a quarter century afterwards, that at the Autumn, 1966, Annual Session of the U.N. General Assembly, immediately after the South West Africa. Second Phase decision, the then President of the Court (Spender) and his predecessor as President (Winiarski (Poland)) were “publicly insulted and defamed without the presiding officers of the sittings [of the General Assembly] ever intervening...”. Gros, op. cit., in Dinstein and Tabory (eds.), op. cit., at p. 295. Judge Gros further suggested that the internal dissension and disunion within the Court itself was so great, after South West Africa. Second Phase, that it cost both Fitzmaurice (a principal author of the majority decision) and also Jessup (who so brilliantly dissented from the majority decision) the Presidency of the Court, in 1967 (when Bustamante y Rivero (Peru) was elected President); and that it cost Fitzmaurice the Presidency of the Court again in 1970 (when Zafrullah Khan (Pakistan) was elected President instead). Judge Gros comments, acidly: “The best were excluded”. Gros, op. cit., at p. 297.
In the regular, triennial elections to the Court, held in November, 1990, the two incumbent judges from France and Great-Britain, Judges Guillaume and Jennings, who chose to run again, were re-elected. Three other incumbents — President Ruda (Argentina), and Judges M’Baye (Senegal) and Pathak (India), were not candidates for re-election, though for different reasons. Their seats were, however, filled with full respect for existing “regional” representation principles. The further principle, of Alternation (rotation) within a recognised “regional” grouping, was also vindicated. In the result, the Latin American seat was filled by an excellent candidate (Aquilar) from Venezuela (which had never before held a seat on the Court), after a diplomatic battle with a candidate from Uruguay who withdrew before the actual vote. (Uruguay had, twice before, had judges on the Court). The Francophonic, sub-Sahara African seat was won by Madagascar, never before represented on the Court, over Senegal which had, twice before, had judges on the Court. The Asian seat went, finally, to Sri Lanka, though with a different candidate to the one who had finished so far back in the field in the April, 1989, partial election for the same seat. Incumbent Judge Pathak, who had made an excellent impression in his brief 18 months on the Court, was not re-nominated by his own Government, which apparently chose to concentrate on a Security Council seat battle (which it won). It had been expected that the seat would then go to the Pakistan candidate, Patel (the runner-up to Judge Pathak in the April, 1989 election), but the sudden change of Government in Pakistan — the new Government publicly disowned Patel’s candidacy — effectively defeated his election chances.
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McWhinney, E. (1991). The Contemporary International Court as Independent, and as Representative Tribunal. In: Judicial Settlement of International Disputes. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6796-5_4
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