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National Judges and Judges Ad Hoc of the International Court of Justice

Published online by Cambridge University Press:  17 January 2008

Stephen M. Schwebel
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Extract

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.”1

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 48 , Issue 4 , October 1999 , pp. 889 - 900
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. Fourth Annual Report of Permanent Court of International Justice, Series E, No.4, pp.75–76.Google Scholar

2. Procès-Verbaux of the Proceedings of the Advisory Committee of Jurists, 24th Meeting, 14 07 1920, pp.528–529.Google Scholar

3. Ibid., p.531.

4. Ibid., p.532.

5. Ibid., p.533.

6. Ibid., p.538.

7. Ibid., 34th Meeting, 24 July 1920, Annex No.1, Report, pp.720–722.

8. Art.31 of the Statute of the International Court of Justice.

9. Lauterpacht, H., The Function of Law in the International Community (1933), p.215.Google Scholar

10. Ibid., pp.233, 235, 236.

11. 45Annuaire dt I'Institut de Droit International (1954), Vol.1, p.534.Google Scholar

12. Ibid., p.465.

13. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Rep. 1993, pp.408–409.Google Scholar

14. For detailed studies on the voting patterns of national judges, see: Edith, Brown Weiss, “Judicial Independence and Impartiality: A Preliminary Inquiry”, in Damrosch, L. F. (Ed.), The International Court of Justice at a Crossroads (1987), pp.123et seq.Google Scholar; Arthur, Rovine, “The National Interest and the World Court”, in Gross, L. (Ed.), The Future of the International Court of Justice (1976), pp 313et seq.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)” (1975) 10 Melbourne U.L. Rev., at pp.59et seq.Google Scholar; Sun, I. Ro, “Voting Behaviour of National Judges in International Courts” (1969) 63 A.J.I.L., at pp.224et seq.Google Scholar; Hensley, T., “National Bias and the International Court of Justice”, (1966) 12 Midwest J. Pol. Sci., pp.568et seq.Google Scholar; Samore, W., “National Origins v. Impartial Decisions: A Study of World Court Holdings”, (1956) 34 Chicago-Kent Law Review, pp.193et seq.Google Scholar

15. See appendix.

16. See the section of my Dissenting Opinion on “Statements by the Congress of the United States and by Congressmen opposed to United States support of the contras”, Military and Paramilitary Activities in and against Nicaragua, I.C.J. Rep. 1986, pp.480–488.Google Scholar The Democratic majority of the Congress, opposed to the Reagan Administration's policy on Nicaragua, nevertheless agreed, on the basis of intelligence briefings and otherwise, that Nicaragua maintained its material assistance to the Salvadoran guerrillas. The Court, perhaps unable to appreciate the significance of this in US politics, gave no weight to this extensive evidence (introduced by Nicaragua). As I observed at pp.480–481:Google Scholar

“A good deal has been made in and by the Court—quite understandably—of the admissions of the United States. The Court would have done well to have given some weight of the affirmations of the Congress of the United States. It is not the practice of the Congress to enact falsehood into fact. In the democratic system which the United States is fortunate enough to enjoy, the press is too free, speech is too unhindered, leaks of official secrets are too easily sprung, the estate of bureaucrats is too low, and the behaviour of Congressmen is too irreverent, to make it likely that, in a case such as this, where the facts have been aired, challenged, debated, scrutinized and tested, the repeated legislative findings of the Congress of the United States, adopted by vast majorities, are false, year after year. And what are those findings?

One may begin with the Permanent Select Committee on Intelligence of the House of Representatives. That Committee, then under the chairmanship of Congressman Edward Bolasd, rendered a report in May 1983 which counsel for Nicaragua, Professor Brownlie, described in Court as ‘that remarkable public document,’ a document which is ‘authoritative and substantial’ (Hearing of 20 September 1985). Let us look at some of the ‘authoritative and substantial’ findings of that report (it appears as Ann. E, Att.1, to the Nicaraguan Memorial).

The Committee—whose majority vigorously opposed continued United States support of the contras—began by observing that the insurgency in El Salvador, ‘depends for its life-blood—arms, ammunition, financing, logistics and command-and-control facilities— upon outside assistance from Nicaragua and Cuba. The Nicaraguan-Cuban contribution to the Salvadoran insurgency is long-standing … It has provided the great bulk of the military equipment and support received by the insurgents.’ …”

17. See, for example, Lowenfeld, A. F., “The Party-Appointed Arbitrator in International Controversies: Some Reflections”, (1995) Texas International Law Journal 59Google Scholar; Zubrod, D. E., “Evident partiality and misconduct of arbitrators”, (1994) 11 Journal of Arbitration 115Google Scholar; Carter, J. H., “Living with the Party-Appointed Arbitrator: Judicial Confusion, Ethical Codes and Practical Advice”, (1992) 3 American Review of International Arbitration 153et seq.Google Scholar; Donahey, M. Scott, “The Independence and Neutrality of Arbitrators”, (1992) 9 Journal of International Arbitration 31.Google Scholar

18. P.C.I.J., Series A, No.5, 51.

19. P.C.I.J., Series B, No.15, 27.

20. P.C.I.J., Series B, No.17, 33.

21. P.C.I.J., Series A/B, No.48, 289.

22. P.C.I.J., Series A/B, No.78, 179.

23. I.C.J. Rep. 1985, 192, 231.Google Scholar

24. I.C.J. Rep. 1991, 53, 75.Google Scholar

25. I.C.J. Rep. 1993, 3, 408.Google Scholar

26. I.C.J. Rep. 1997, 261, 278et seq.Google Scholar

27. I.C.J. Rep. 1985, 13, 57, 104.Google Scholar

28. I.C.J. Rep. 1992, 351, 611–617, 621.Google Scholar

29. I.C.J. Rep. 1995, 90, 224.Google Scholar

30. I.C.J. Rep. 1997, 7, 83, 84.Google Scholar

31. P.C.I J., Series B, No.15; see also the Fourth Annual Report, P.C.I.J., Series E, No.4, 32 et seq.

32. P.C.I.J., Series A/B, No.43, 128 et seq.

33. P.C.I.J., Series A/B, No.44, 4 et seq.

34. See P.C.I.J., Series D, Third Addendum to No.2, 17 et seq., 31 and 917 et seq.

35. Corfu Channel, Preliminary Objection, Judgment, 1948, I.CJ. Rep. 1947–1948, 15Google Scholar; Corfu Channel, Merits, Judgment, I.C.J. Rep. 1949, 4Google Scholar; Corfu Channel, Assessment of Amount of Compensation, Judgment, I.C.J. Rep. 1949, 244.Google Scholar

36. Albania chose Mr I. Daxner (Czechoslovakia), who sat upon the Bench when the preliminary objection was heard, and Mr B. Ecer (Czechoslovakia), who sat when the case was heard on the merits and also for the assessment of the amount of compensation.

37. Legality of Use of Force (Yugoslavia v. Belgium) (Yugoslavia v. Canada) (Yugoslavia v. Italy) (Yugoslavia v. Spain), para. 12.

38. Legality of Use of Force (Yugoslavia v. Portugal), para.12.

39. Nottebohm, Preliminary Objection, I.C.J. Rep. 1953, 111.Google Scholar

40. Sovereignly over Certain Frontier Land, I.C.J. Rep. 1959, 209.Google Scholar

41. Temple of Preah Vihear, I.C.J. Rep. 1962, 6.Google Scholar

42. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Rep. 1988, 69.Google Scholar

43. Certain Phosphate Lands in Nauru (Nauru v. Australia) Preliminary Objections, I.C.J. Rep. 1992, 240.Google Scholar

44. P.C.I.J., Series E, No.9, 161.

45. The Agent of Liechtenstein to the Registrar, 04 29, 1954, I.C.J. Pleadings, Nottebohm, Vol.II, p.630.Google Scholar

46. Nottebohm, Second Phase, I.C.J. Rep. 1955, 6.Google Scholar

47. I.C.J. Pleadings, South West Africa, Vol.XII, 524et seq.Google Scholar

48. Barcelona Traction, Light and Power Company, Limited, I.C.J. Rep. 1970, 3.Google Scholar

49. Ibid., dissenting opinion Riphagen, 334 et seq.

50. See Lillich, R. B., “The Rigidity of Barcelona”, (1971) 65 A.J.I.L. 522.Google Scholar

51. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Rep. 1994, 6, dissenting opinion Sette-Camara, 93et seq.Google Scholar

52. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Rep. 1996, 595, dissenting opinion Kreca, 658et seq.Google Scholar

53. Ibid., declaration of Judge Lauterpacht, 633.

54. For another, recent analysis of the institution of judges ad hoc, see Shabtai, Rosenne, “Article 31 of the Statute of the International Court of Justice Revisited”, in Droit et Justice, Mélanges en I'honneur de Nicolas Valticos (1998).Google Scholar See also the discussion on a paper presented by Elihu, Lauterpacht in, Connie, Peck and Lee, Roy S. (Eds) Increasing the Effectiveness of the International Court of Justice (1997), pp.370–396.Google Scholar

An earlier version of this paper is to be found in Droit et Justice, Mélanges en l'honneur de Nicolas Valticos.

The author wishes to thank Mr Dietmar Prager, legal officer of the Registry of the International Court of Justice, and Mr Eric Ward, former legal officer of the Registry, for their assistance in the preparation of this paper.