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4 - National judges and judges ad hoc of the International Court of Justice

from PART I - International Court of Justice

Published online by Cambridge University Press:  07 September 2011

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Summary

When the Statute of the Permanent Court of International Justice was drafted by an Advisory Committee of Jurists in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit?

The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court. It observed that:

In the attempt to establish international courts of justice, the fundamental problem always has been, and probably always will be, that of the representation of the litigants in the constitution of the tribunal. Of all influences to which men are subject, none is more powerful, more pervasive, or more subtle, than the tie of allegiance that binds them to the land of their homes and kindred and to the great sources of the honours and preferments for which they are so ready to spend their fortunes and to risk their lives. This fact, known to all the world, the [Court's] Statute frankly recognises and deals with.

But how to recognize and deal with ties of allegiance was controversial. The authors of the Root-Phillimore plan, which so profoundly influenced the drafting of the Statute in 1920, maintained that judges of the nationality of a party to the case should sit.

Type
Chapter
Information
Justice in International Law
Further Selected Writings
, pp. 25 - 40
Publisher: Cambridge University Press
Print publication year: 2011

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References

Weiss, Edith Brown, “Judicial Independence and Impartiality: A Preliminary Inquiry,” in Damrosch, L. F. (ed.), The International Court of Justice at a Crossroads (Dobbs Ferry, NY: Transnational, 1987)Google Scholar
Rovine, Arthur, “The National Interest and the World Court,” in Gross, L. (ed.), The Future of the International Court of Justice (Dobbs Ferry, NY: Oceana, 1976)Google Scholar
Terry, G., “Factional Behaviour on the International Court of Justice: An Analysis of the First and Second Courts (1945–1951) and the Sixth and Seventh Courts (1961–1967),” Melbourne University Law Review 10 (1975) pp. 59ffGoogle Scholar
Suh, I. Ro, “Voting Behaviour of National Judges in International Courts,” American Journal of International Law 63 (1969), pp. 224ffCrossRefGoogle Scholar
Hensley, T., “National Bias and the International Court of Justice,” Midwest Journal of Political Science 12 (1966), pp. 568ffCrossRefGoogle Scholar
Samore, W., “National Origins v. Impartial Decisions: A Study of World Court Holdings,” Chicago-Kent Law Review 34 (1956), pp. 193ffGoogle Scholar
Lowenfeld, A. F., “The Party-Appointed Arbitrator in International Controversies: Some Reflections,” Texas International Law Journal 59 (1995)Google Scholar
Zubrod, D. E., “Evident Partiality and Misconduct of Arbitrators,” Journal of Arbitration 11 (1994), 115Google Scholar
Carter, J. H., “Living with the Party-Appointed Arbitrator: Judicial Confusion, Ethical Codes and Practical Advice,” American Review of International Arbitration 3 (1992), 153Google Scholar
Donahey, M. Scott, “The Independence and Neutrality of Arbitrators,” Journal of International Arbitration 9 (1992), 31Google Scholar

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