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Oppenheim's International Law: United Nations by Higgins, Rosalyn; Webb, Philippa; Akande, Dapo; Sivakumaran, Sandesh; Sloan, James

Part 4 Adjudication Within the United Nations System, 29 The International Court of Justice

Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan

From: Oppenheim's International Law: United Nations

Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 August 2019

Subject(s):
Judges — International criminal law, conduct of proceedings

(p. 1137) 29  The International Court of Justice

  1. 1.  The ICJ as a principal organ of the United Nations 29.01

  2. 2.  The Bench 29.03

  3. 3.  The Court’s functions 29.17

  4. 4.  The ICJ is distinct from other principal organs 29.187

  5. 5.  ICJ financing and the UN 29.242

  6. 6.  The ICJ and other international courts and tribunals 29.281

  7. 7.  Methods of work of the ICJ 29.290

  8. 8.  ICJ efficiency 29.424

Brotóns, ‘Nomination et élection des juges à la Cour Internationale de Justice’ in Unité et diversité du droit international: écrits en l’honneur du professeur Pierre-Marie Dupuy (eds Alland et al, 2014); Eisemann and Pazartzis, La Jurisprudence de la Cour International de Justice (2008); Eyffinger, La Cour internationale de Justice, 1946–1996 (1999); Fitzmaurice, The Law and Procedure of the International Court of Justice (1986); Goy, La Cour internationale de justice et les droits de l’homme (2002); Guillaume, La cour internationale de justice à l’aube du XXIème siècle: le regard d’un juge (2003); Guyomar, Commentaire du Règlement de la Cour international de Justice, adopté le 17 avril 1978; Interprétation et pratique (2nd edn, 1983); Kolb, La Cour Internationale de Justice (2013); Kolb, The Elgar Companion to the International Court of Justice (2014); Lowe and Fitzmaurice, Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (2007); Mosler, Der internationale Gerichtshof: Erfahrungen eines Richters und Beurteilung der Entwicklungstendenzen (1996); Norodom, ‘La Cour internationale de Justice, à la croisée du droit des Nations Unies et du droit international’ in 70 ans des Nations Unies: quel rôle dans le monde actuel?: Journée d’études en l’honneur du Professeur Yves Daudet (2014); Oellers-Frahm, ‘Der insititutionelle Rahmen: Status, Ausstattung und Personalhoheit internationaler Gerichte: der I.G.H., der Internationale Strafgerichtshof und das Jugoslawien-Tribunal im Vergleich’ (2003) 30 Europäische Grundrechte-Zeitschrift 107–17; Pellet, ‘Le procès international et le temps: le temps du conseil’ in Le droit international et le temps: colloque de Paris/Société francaise pour le droit international (2001), 243–8; Quintana, Litigation at the International Court of Justice: Practice and Procedure (2015); Rao, Dispute Settlement: General Topics: International Court of Justice (2003); Rosenne, The World Court: What It is and How It Works (6th edn, ed Gill, 2003); Rosenne, The Law and Practice of the International Court: 1920–2015 (5th edn, ed Shaw, 2016); Schorer, Das Konsensprinzip in der internationalen Gerichtsbarkeit (2003); Simma, Khan, Nolte, and Paulus, The Charter of the United Nations: A Commentary (2012); Tams and Sloan (eds), The Development of International Law by the International Court of Justice (2013); Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (2013); (p. 1138) Thirlway, The International Court of Justice (2016); Ulimubenshi, L’exception du domaine réservé dans la procédure de la Cour internationale: contribution à l’étude des exceptions dans le droit judiciaire de la Cour internationale (2003); Verdross and Simma, Universelles Völkerrecht: Theorie und Praxis (3rd edn, 1984), 117; Wolfrum, ‘Konkurrierende Zuständigkeiten internationaler Streitenstcheidungsinstanzen: Notwendigkeit für Lösungsmöglichkeiten und deren Grenzen’ in Liber amicorum Judge Shigeru Oda (vol 1, eds Ando and McWhinney, 2002), 651; Zimmerman, ‘Das Statut des Internationalen Gerichtshofes: Entwicklunglinien der Rechtsprechung’ (2003) 24 Liechtensteinische Juristenzeitung 38; Zimmermann, Tomuschat, Oellers-Frahm, and Tams (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, 2012).

1.  The ICJ as a principal organ of the United Nations

29.01  The Court, which alone of the UN principal organs has its seat in The Hague, consists of a Bench, a Registry, and a modest but important staff. All judges, who have to be able to work in French or English (with a working knowledge of the other language), are expected to sit on one of the Court’s two major committees, the Rules Committee and the Budgetary and Administrative Committee (BAC). The former is heavily engaged in the efficient working of the Court, responding to procedural and operational problems put before it by the Court, and also assisting in the drafting of amendments to the Rules of Court and to any Practice Directions under consideration.

29.02  The task of the BAC is to receive information from the Registrar on staffing matters that do not fall within his/her sole remit, and to examine and approve his/her proposals. This is not always a routine matter. Occasionally judges will choose to sit on both these Committees.1

2.  The Bench

29.03  The Bench2 of the International Court of Justice (ICJ) consists of 15 judges, each being of a different nationality.

29.04  Upon election, each judge will make a solemn declaration.3 This usually occurs at the first public sitting after arrival at the Court. If for any reason this is not to occur (p. 1139) for a considerable time, special arrangements may be made by the President for a private ceremony, to which the new judge’s family will be invited. A judge does not have to wait until this ceremony for his/her work to begin. Case materials and other documents will be passed to the new judge from the moment of election, and even before arrival at the Court, so that he/she may begin to prepare for a forthcoming case.

2.1  Nominations to the Bench

29.05  The nomination of a judge is made by a national group, and that judge is then entered into elections, which occur simultaneously in the General Assembly and Security Council.4 The veto does not apply to this election and a simple majority is required in both organs.5 A judge may receive this dual simple majority early, or it may take several rounds for the necessary dual majority to be received, as there will often be other elections being voted on and because fewer than the five judges (the number of seats that become vacant every three years) may secure the necessary majority in both organs. It may also be the case that more than five candidates obtain a majority in one of the organs concerned.

29.06  Elections are complicated by the fact that there is an ‘understanding’ both as to regional distribution and as to the tradition of electing those candidates who come from the P5 countries.6 The latter is not obligatory and the ‘understanding’ could be broken either for political reasons or because of the nomination of a poor quality candidate. ‘Regional balance’ seems to have been established by the 1960s.7 Broadly speaking, it mirrors the regional composition of the Security Council. In addition to the ‘P5 seats’, there is an Eastern European seat and two ‘Western European and Others’ seats. Within this last, there is the perception of a rotation between a ‘northern European seat’ and a ‘southern European seat’.8 There are two (p. 1140) Latin American seats (one of which may, or may not, fall to a Caribbean candidate); three African seats, most usually one being Anglophone and one Francophone, reflecting a common law and civil law background, and the third being North African; and two Asian seats (with Jordan in the past having been considered an ‘Asian’ seat). An Arab judge will often fill one of either the Asian or the African seats. Canada, Australia, and New Zealand are to an extent anomalous and are subsumed within the category of ‘Western Europe and Others’. These are flexible categories, and both their description and the categories themselves to an extent evolve over time.9

29.07  A minority of member states of the Security Council and General Assembly will not bargain politically about Court candidates. Other states will do so, taking into account other placings in the UN to which they are seeking to have candidates elected.

29.08  Those standing in the elections at the UN to the Court will usually have been nominated by a national group in the Permanent Court of Arbitration (PCA), rather than by their government.10 The PCA is a skilled and knowledgeable registry, with a list of arbitrators from which an arbitral tribunal can be formed. The composition of such nominating groups is covered by Article 44 of the 1907 Convention for the Pacific Settlement of International Disputes. Each party is to select up to four persons of high standing in the field of international law, who would be ready to accept the duties of arbitrator. But the connection between service as a PCA arbitrator and service on a national nominating group has become extremely tenuous. Further, many members of the UN were not a party to the Hague Conventions.11 Even (p. 1141) among those states that are parties to the Hague Conventions, there will be some that have not constituted a national group.12

29.09  This has not meant that persons of the nationality of such states may not be nominated as judges and their names put forward for election to the General Assembly and the Security Council.13 This is because ad hoc groups can be formed for the sole purpose of nominating a candidate to be elected judge of the ICJ.14

29.10  The composition and operation of national groups varies considerably. Governments are likely to have a greater role in ad hoc groups. The US PCA national group is chaired by the Legal Adviser to the State Department. At the same time, it seeks to be bipartisan, with the federal judiciary, the Bar, and the academic community all represented.15 The UK nominating group is chosen by the Government but then left to get on with making its choice. There is usually the last Foreign and Commonwealth Office Legal Adviser-but-one, the Senior Law Lord (now the President of the UK Supreme Court), the UK judge at the International Court, and a leading academic. But, unlike the US national group, there is no formal reaching out to the Bar and to academia before a nomination is finally made.16 And at the end of the day, the name that the group is minded to propose is passed before the Attorney-General and the Lord Chancellor.

29.11  No doubt, there is a very wide variation in the composition and work of national nominating groups. But states are to an extent kept at one remove in this process.

2.2  Election to the Bench

29.12  Judges are elected for a nine-year term. The judges being 15 in number, these judicial elections are staggered, so that only one-third of the Court comes up for re-election at any one time. There are elections for one-third of the members every three years—members wishing to continue at the Court are subject to renomination.17

29.13  Election by the General Assembly and Security Council necessarily involves an element of politics. A candidate seeking election or re-election will normally think it only courteous to be present once or twice at the UN in the weeks running up to an (p. 1142) election period, to meet representatives of states and answer any queries they may have about the Court. It seems to be well understood by states that it would not be appropriate to query or challenge overtly how a judge standing for re-election has voted on particular cases.

29.14  The reality is that different judges face different pressures, some perceiving unspoken pressure both from states in the region and from national authorities (however much the latter avoid direct pressure during cases). The suggestion has been made that politicization of elections could be minimized if judges were elected for a single term of between nine and 12 years.18

29.15  Where a candidate has secured a majority in the Security Council and another candidate secures a majority in the General Assembly, further rounds of voting will usually occur in both organs. Where neither candidate is still able to secure a majority in both organs, various possibilities present themselves. Under Article 12(1) of the Statute, a joint conference could be constituted.19 This has never yet happened in elections for the ICJ.20 Alternatively, further voting may be postponed for a considerable period, allowing consultations and deliberation. The latter has been the usual path followed.21 Most usually the Security Council defers to the General Assembly in this circumstance—that is to say, certain votes may, in the resumed voting, be switched from the candidate securing a majority in the Security Council to the candidate who secured a majority in the General Assembly.22

(p. 1143) 29.16  Where six or more candidates obtain an overall majority, it is not the five who have obtained the highest majority who are elected. Rather, the ballot is re-run with all the candidates.23

3.  The Court’s functions

3.1  Introduction

29.17  The Court is a principal organ of the UN, as well as its principal judicial organ.24

29.18  It has its seat in The Hague, which perhaps provides a convenient distance from the politics of the UN in New York. That distance also has its disadvantages. The Court cannot closely watch every matter happening in New York that may affect it. There are inevitably misunderstandings, and sight is sometimes lost of the Court and its role in the Charter and annexed Statute. This is particularly true as regards administrative and financial issues arising at the UN.25

29.19  The Court is in many ways unlike any other, being on the one hand an integral part of the structure of the UN, and on the other having a very special standing in its host country. It will provide all information to both of them; it is also to deal with requests from authorized UN organs and agencies for Advisory Opinions.

3.2  Judges ad hoc

29.20  States involved in litigation before the Court, when they have no national upon the Bench, may be entitled to nominate a judge ad hoc for purposes of sitting in the case in question.

3.2.1  The concept of a judge ad hoc

29.21  Upon appointment to the Court, a new Member makes a Solemn Declaration, the terms of which include the undertaking to act impartially.26 Thus a judge may continue to sit on the Bench when his/her state is a party.27

29.22  That commitment to impartiality was from the outset not thought sufficient, however, to command the total confidence of the State Party to a case that does not have (p. 1144) a judge on the Bench. Further, it was thought important for the equality of the parties to be seen to be established.28 The concept of a judge ad hoc was introduced to serve these purposes.29

29.23  The idea of equality between the parties can play no role in the entitlement of parties to a case each to choose a judge ad hoc for purposes of the case.30 This entitlement suggests a lack of confidence in the Court Bench as normally constituted. It also implies that a judge ad hoc can perform a role within the Court that other judges cannot, and one that will not have been done already by counsel. All judges examine in great detail all the arguments of the parties. By the time the Judges’ Notes have been written, virtually all the points made by the parties will have been addressed. If a counsel has failed to convince the Court of a point, the presence of a judge ad hoc (who in any event is not meant to act as a representative of, or on behalf of, the party who has appointed him/her) will not change matters.

29.24  The Court finds especially useful the contribution of a judge ad hoc who has specialist skills not strongly present on the Bench but which arise in a particular case,31 or who is able to assist in identifying the sequence of national legislation by reference to international events and legal obligations that are in issue.32

3.2.2  The impartiality of a judge ad hoc

29.25  More generally, the role of the judge ad hoc has been addressed in a statement by one ad hoc judge,33 whose views have been found to be important by other judges ad hoc and judges.34 The judge ad hoc is not a representative of the appointing state, but

(p. 1145) consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specific that distinguishes his role. He has…the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that appointed him has been fully appreciated in the course of collegial consideration …35

One would hope that this would occur in any event. Further, it does not put the judge ad hoc into parity with the national judge of the other side. For a national judge of a litigating party (in contrast to a judge ad hoc of the other party), such an approach would not be appreciated by his/her colleagues.

29.26  The position of the appointing state may, after all, be the better one in law. Until relatively recently, however, there was an assumption that a judge ad hoc would vote in support of the appointing state.36 Indeed, a judge ad hoc (even when not a national of the appointing state) has several times constituted a minority of one.37 More recently, however, judges ad hoc have joined the rest of the Court when it found against the appointing state, resulting in an unprecedented unanimity of voting in the Court.38

29.27  There is no failure to treat in full equality the judge ad hoc by virtue of the fact that he/she (or the more junior of the two ad hoc judges) both speaks first when the formal Deliberations of the Court commence and later votes first upon the proposed dispositif. The members of the Bench cannot speak simultaneously, nor (because the vote is by roll call) can they vote simultaneously. These matters have always been handled by going first to the most junior judge (that is, the one most recently arrived on the Bench), then proceeding in reverse order of seniority.39

3.2.3  Implications of judges ad hoc on the Bench

29.28  Judges ad hoc ‘take part in the decision on terms of complete equality with their colleagues’.40

(p. 1146) 29.29  As each member of the Court has an office and a secretary, and since 2009 a law clerk and often the services of a university trainee, these become entitlements for the judge ad hoc from the moment of his/her appointment. A room is allocated and a secretary, law clerk, and trainee are identified. These aides are often to be shared with regular members of the Bench. As of 2016, there were 12 ad hoc judges.41 The pressure on the Court in providing conditions of equality is very substantial. In the 2015–16 budget, the cost of facilities for judges ad hoc amounted to $1,015,200.42 Although the position of the judge ad hoc is to be one of equality from the time of his/her appointment, most judges ad hoc avail themselves of these entitlements only when called to the Court on preliminary duties relating to the case in which they are to sit as a judge ad hoc. Others, however, are pleased to avail themselves more generally and from the outset of these amenities (including use of the Restaurant des Juges).

29.30  These realities, financial and otherwise, occasioned a call by one President, in her speech to the General Assembly, for restraint in the appointment of ad hoc judges, most particularly when neither party to the case has a national on the Bench.43

3.2.4  Procedure for choosing a judge ad hoc under Article 3(1) of the Statute

29.31  Once a case has been listed, a party becomes entitled to choose a judge ad hoc. There is no time limit for the exercise of this entitlement, but the party shall notify the Court of its intention ‘as soon as possible’.44 If the name and nationality of the proposed judge ad hoc is not notified at the same time, the party concerned must bear in mind that this information is to be provided no later than two months before the filing of the Counter-Memorial.45

(p. 1147) 29.32  A judge ad hoc will usually, but not necessarily, be a national of the appointing state.46 In recent years there has perhaps been a trend to look beyond potential judges ad hoc of the nationality of the nominating state.

29.33  There appears to be no objection to a state’s appointing a judge ad hoc who is a person of the same nationality as a judge already sitting.47

29.34  It is not uncommon for the Registrar to have to ‘chase’ a state party to provide the details required by the Rules of Court in timely fashion. The Registrar transmits to both the Court and the other party a copy of the notification of a judge ad hoc. The other party is requested to furnish, within a time limit set by the President, any observations regarding that choice. The notification by one party is almost invariably accepted by the other. If no response is received by the second state, the parties are informed and the matter is treated as giving rise to no objection. An expression of doubt, short even of a formal protest, shall make the matter one for Court decision, ‘if necessary after hearing the parties’.48

29.35  The Court itself may consider whether it perceives any objection to a nomination by the party.49 Generally speaking, the acceptability or otherwise is a matter for the parties, but even were the parties to be in agreement, the Court is the guardian of the Statute and Rules.

(p. 1148) 29.36  A judge ad hoc who becomes unable to sit, or to continue sitting, may be replaced by the nominating state.50 No rules are stipulated regarding the time limits for exchanges between the parties in these circumstances. This will be a matter for the President.

29.37  A judge ad hoc will make the same Solemn Declaration as a new judge, by which he/she undertakes to act in all impartiality. It has not been unknown, however, for a member of a team who has worked on the preparation of a case to be nominated by his/her state as a judge ad hoc. Whether this is appropriate is doubtful, but such relevant facts are not usually before the other party, or the Court, at the time that the nomination is under consideration.51

29.38  A person may be nominated (and sit) as a judge ad hoc and then, before hearings in the case for which he/she was appointed or before the conclusion of the case, be nominated to sit as a full judge in the Court during forthcoming elections for one or more vacancies on the Court. The question has arisen as to whether such a person may, until he takes his/her seat as a full member of the Court, continue to sit as a judge ad hoc.52

3.2.5  Moment from which the duties and rights of the judge ad hoc flow

29.39  An ad hoc judge, like a new Member of the Court, will usually53 make his/her Solemn Declaration at the very opening of the oral proceedings in the next scheduled case. However, the participation of the ad hoc judge, in full equality, begins from the moment his/her choice by a nominating state has been agreed to, or remained unopposed, within the specified time limits for any observations. From that moment the judge ad hoc will start to receive, electronically or otherwise, all papers and documents that are currently relevant for the work of the Court/under consideration.

29.40  Thus even before making the Solemn Declaration, a judge ad hoc may participate in the Deliberations in a case, and indeed may even vote on the adoption of an Order.54

3.2.6  Scope of the duty and entitlement to participate

29.41  The broad ‘rule’ is that while a judge ad hoc will participate in the case in which he/she has been nominated, he/she will not be present for discussion in the Court (p. 1149) relating to the appointment of a judge ad hoc by the other party. Not only would that create an imbalance inter partes, but it would also violate the principle that certain matters are for the decision of the Court itself, by virtue of its responsibility for conformity with the Statute. What matters fall within that category is usually, but not always, self-evident.

29.42  Thus the Court has had to consider whether a judge ad hoc should participate in ongoing discussions of whether, for example, a state should be allowed to appoint a judge ad hoc for the case concerned if a judge who was the national of that state had recused herself.55

29.43  The establishment by the Court of its work programme is not regarded as a matter for the Court alone—tough decisions on scheduling might well have implications for ad hoc judges. Thus a revision to scheduling may have negative consequences for a judge ad hoc.

29.44  A judge ad hoc is to hold himself/herself at the disposal of the Court. An indication to the President by a judge ad hoc that he was unavailable for the rest of the year could not preclude the Court from holding meetings in his absence, nor the participation of the other judge ad hoc in such meetings. However, given that judges ad hoc are entitled to have other engagements, the Court will often be in touch informally with them to see if one possible date for a meeting would be more preferable than another.

29.45  Although overall scheduling and the setting of the Court’s programme for the forthcoming months is a matter for the Court, not requiring the presence of the ad hoc judge, such decisions by the Court will often be affected by those on other matters in which the judge ad hoc is fully entitled to participate. Thus difficult issues such as the procedure for dealing with witnesses in the case concerned will have an impact upon the organization of the specific case—being aspects in which the judge ad hoc is entitled to participate.

29.46  Modification of the established timetabling will be decided without the presence of the judge or judges ad hoc, but as a courtesy they will be contacted by the Registrar for matters to be explained to them. The date for the opening of hearings will also be considered without calling in the judge or judges ad hoc. The hearing and admissibility of witness statements is to be discussed with the judge or judges ad hoc present. Where the Court is to meet to discuss the procedure for Article 5 deliberations,56 all judges ad hoc will be present.

29.47  The name of a judge ad hoc will appear on an Order relating to the case for which he/she was appointed. More problematic is the absence during the discussion of a pending (p. 1150) vote. The judge ad hoc concerned had indicated, by letter, his views on all the relevant elements, and discussions proceeded in his absence. The Order was adopted. Such an absence should not prevent the other judge ad hoc from participating.

29.48  On the rare occasions when the Court makes a site visit,57 a judge or judges ad hoc will participate in full.58 If there is a very minor matter in which, as a point of principle, the judge ad hoc should participate, but he/she lives far from The Hague, it may be that the Court will decide that the judge ad hoc should be consulted by telephone.

29.49  Less clear-cut is the participation of judges ad hoc in particular types of cases before the Court. These are of many types. Thus in the anomalous ‘pre-judicatory’ hearing in the Request for Examination case, the Court authorized the judge ad hoc appointed by New Zealand to sit without prejudice to any decision the Court would later take regarding the very issue of whether a case existed or not.59 The fact that the Court might have, in preliminary objections, to decide whether a legal dispute exists at all, does not preclude the appointment for that purpose of a judge ad hoc.

3.2.7  Advisory Opinions and judges ad hoc

29.50  In advisory proceedings, no state is designated as the applicant or respondent, or indeed as a party to the case. The entitlement to choose a judge ad hoc in a case is, under Article 35 of the Rules, bestowed upon ‘a party’.

29.51  When a potential respondent has declined, in a dispute in which it is involved, to be brought before the Court, advisory proceedings—where the request to the Court is made by an authorized organ or agency of the UN60—are not to be the vehicle for adjudicating the matter in issue. At the same time, the Court has frequently, by reference to particular criteria, agreed to proceed with a request for an Advisory Opinion in circumstances in which one or more states have protested that this is in effect a determination of a dispute when it/they have not so consented.61

29.52  It is in such circumstances that the question arises—notwithstanding the wording of Article 35 of the Rules—as to whether a state that perceives itself as a ‘party’ to a dispute being the subject matter of a request for an Advisory Opinion, may seek to appoint a judge ad hoc.62

(p. 1151) 29.53  It is not easy for a state in this position to perceive any line of consistency in these matters. In the Namibia advisory proceedings, South Africa sought to appoint a judge ad hoc. Without offering reasons, this was rejected by the Court.63 The expanded explanation of the Court in the Advisory Opinion itself was hardly more illuminating.64

29.54  At the time of the Western Sahara Advisory Opinion, a Member of the Court of Spanish nationality was sitting on the Bench. Morocco and Mauritania each sought to appoint a judge ad hoc. A preliminary hearing was held to address their entitlement to do so. The Court determined, in what seems a very formalistic analysis, that Morocco was entitled to nominate a judge ad hoc, whereas Mauritania was not.65

29.55  In some Advisory Opinions no request for a judge ad hoc has been made by states that might have been in a position to do so.66

29.56  Where any existing dispute relating to an Advisory Opinion is essentially between a state and the Security Council or other organ of the UN, naturally, the question of a judge ad hoc does not arise.67 And of course the issue also does not arise when an Advisory Opinion concerns a Judgment of the Administrative Tribunal of the International Labour Organization (ILO) (or earlier, of the UN itself).68

3.2.9  Judges ad hoc in other proceedings

3.2.9.3  Incapacity or recusal of sitting judge

29.60  In these circumstances the state concerned (even if it is not directly concerned with the dispute before the Court) may choose a judge ad hoc.72

3.2.9.4  If a person already chosen as a judge ad hoc becomes unable to sit

29.61  In these circumstances a different person may be appointed. In the dispute of Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Honduras initially nominated Mr Michel Virally as judge ad hoc on 8 April 1987. However, Judge ad hoc Virally died on 27 January 1989. Honduras then chose Mr Santiago Torres Bernardez to sit as judge ad hoc in place of late Judge ad hoc Virally.73

(p. 1153) 3.2.9.5  Uncertain status of entities invited to participate in Advisory Opinion proceedings

29.62  Where special means were found for Palestine74 and the Kosovo authorities (authors of the unilateral declaration of independence)75 to participate in advisory proceedings relating to them, no requests were made for judges ad hoc.

3.2.9.6  ‘In the same interest’

29.63  Article 31(2) and (3) of the Statute stipulate the circumstances in which a party may choose a judge ad hoc.76 There is an exception to that entitlement provided by Article 31(5).77

29.64  The application of these provisions is a matter for the Court, which has to ensure compliance with the Statute. Any agreement by the parties will be irrelevant to the decision that must be made by the Court.78

29.65  When two cases based on similar facts and having some arguments in common have not been joined, the entitlement of one party in the cases before the Court to appoint a judge ad hoc will depend upon whether the party nominating him/her is ‘in the same interest’ as another party attempting so to nominate, or another party having a national on the Bench.

29.66  How it is to be determined by the Court that a party is or is not in the same interest as another has proved problematic.

29.67  The 1920 travaux préparatoires to what became Article 31 in the Court’s Statute suggest that maintaining a balance within the Bench was an important consideration in not allowing two or more parties in the same interest to appoint more than one judge ad hoc.79 It has also been suggested—though the text cannot be said to confirm this—that Article 31(5) was meant to apply to a situation where applicant states were seeing the appointment of more than one judge ad hoc. It is not clear why the (p. 1154) concept of common interest should be different, however, when applicable to respondent parties who seek ad hoc judges.80

29.68  There has been a series of cases where the issue of the appointment or otherwise of more than one judge ad hoc has proved problematic for the Court. The great differences in circumstances in each of these cases have made it hard to rely on them as a precedent in the understanding of the phrase ‘in the same interest’.

29.69  The Permanent Court of International Justice (PCIJ) had, in this context, found a situation of ‘common interest’ to exist where the written final submissions of the parties were identical, even though they had used somewhat different arguments on the route to these submissions.81

29.70  Nevertheless, it is doubtful that this can be relied on in any literal sense. All respondent states seek to have a finding that the Court lacks jurisdiction. That simple fact cannot determine that two parties are in the same interest. Conversely, were the Customs Regime case to be relied on too literally, all that parties would have to do to avoid being perceived as ‘in the same interest’ would be to formulate their final submissions in carefully differentiated form.

29.71  At the end of the day, it seems to be a matter of ‘feel’, in which relevant factual circumstances play their part, as to whether two or more parties are ‘in the same interest’ for purposes of Article 31(5) of the Statute.

29.72  In the opinion of some, the entitlement of a party to appoint a judge ad hoc was the rule, with Article 31(5) being the exception—an exception to be applied only sparingly.

29.73  The applicability of Article 31(5) where there are two cases in issue, rather than one, is also contested.82 Cases may be joined or, as a matter of convenience, dealt with together by the Court.83 It is felt by some judges to be inappropriate to disallow the parties to appoint judges ad hoc in cases that are separate, albeit related.84

(p. 1155) 29.74  If two similar cases are joined,85 the argument in favour of separate judges ad hoc86 largely falls away. Joinder is a distinct issue, related to but not consequent upon the Court’s inclinations regarding the designation by one party of a judge ad hoc under Article 31(3) of the Statute.

29.75  It remains the case that a party considering whether to seek to appoint a judge ad hoc will find little, if any, guidance in the case law. The Customs Regime case of the PCIJ merely suggests the criterion for determining whether two parties are ‘in the same interest’—a criterion which is of little intellectual or operational weight. Uncertainties remain as to whether the test is indeed identical Final Submissions, or whether discrepancies in the claimed basis for jurisdiction nonetheless precludes two parties from being ‘in the same interest’. In the Fisheries Jurisdiction cases, Germany was not permitted to appoint a judge ad hoc for the jurisdiction phase, being perceived as ‘in common interest’ with the UK, who had a national judge on the Bench.87 Issues loomed large relating to the different composition of the Bench in two non-joined cases, were a judge ad hoc to be appointed for one of them.88

29.76  There has been some suggestion that at each stage of a case the question of whether parties are ‘in the same interest’ is to be reconsidered by reference to the Final Submissions for that phase. At the merits phase of the Fisheries Jurisdiction case,89 Germany decided not to seek to appoint a judge ad hoc, given Iceland’s non-appearance.

29.77  In other pertinent cases, the Court was able to stand back from the question of ‘in the same interest’ through the actions of the parties. In the North Sea Continental Shelf cases, Denmark and The Netherlands perceived themselves as being in the same (p. 1156) interest and nominated a single judge ad hoc.90 This being a matter relating to the Statute, the Court then verified the decision.

29.78  The question of judges ad hoc in multiparty (but not joined) proceedings has been dealt with by the Court in a pragmatic and sometimes opaque fashion. Practical problems relating to pluralities and expansion of the Bench, against the background of ‘in the same interest’, were very much evident in the Legality of the Use of Force cases, where Yugoslavia brought actions in 1999 against 10 respondent states.91

29.79  The proceedings in the Legality of the Use of Force cases were initiated by Yugoslavia as requests against these different states for provisional measures. On 2 June 1999 it became clear, inter alia, that judges ad hoc were nominated by those respondents without a national on the Bench and agreed to by the Court. Where judges of the nationality of respondent states were already on the Bench,92 the question of judges ad hoc did not arise.

29.80  No indication was given in that judgment as to whether the Court had been concerned with whether issues arose relating to ‘in the same interest’.93

29.81  By 2003, when the cases were due to be heard on the question of preliminary objections, the situation had become very complex.94 Not only did the applicant now itself challenge the Court’s jurisdiction (without purporting to withdraw the cases), but the situation concerning judges ad hoc changed significantly.95 The 2004 (p. 1157) judgment briefly reports the President’s meeting with the agents, where, inter alia, the topic of judges ad hoc was discussed.96

29.82  The Court did not articulate the basis for its decision, which is perplexing on the question of ‘in the same interest’, referring as it does to judges on the Bench of the nationality of certain respondent states.97 The unfortunate implication is that sitting members of the Bench will in some sense be ‘in the same interest’ as respondents, including respondents having no national judge on the Bench.

29.83  The Court specified that this decision was without prejudice to the situation should the cases proceed to the merits.98

29.84  The controversial character of the 2004 judgments99 (on matters unrelated to the issue of ad hoc judges) meant that the judgments themselves and the various Opinions (including the Separate Opinion of Judge ad hoc Kreca)100 gave almost no attention to Article 31(5) of the Statute.

3.3  Notification of proceedings

29.85  There are also certain circumstances in which the Court, by virtue of its Statute, will need to notify those who are not the parties to a case of the fact that proceedings will be commencing.101

29.86  Every state so notified has the right to intervene in the proceedings.102

(p. 1158) 29.87  This is to be distinguished from the notification by the Registrar of any request for an Advisory Opinion to all states entitled to appear before the Court.103

29.88  Some have seen a conflict between the wording of Article 63 of the Statute and the apparent qualification in Article 43 of the Rules.104 However, things are on occasion less than straightforward, and guidance from the Court is indeed necessary.105

29.89  Although a conservative interpretation of Article 63 has generally been the case, the Court in 2005 decided that its practice of non-notification to states parties to United (p. 1159) Nations Convention on the Law of the Sea (UNCLOS), and to the 1958 Geneva Conventions on the Law of the Sea, was not sustainable. This was the more so as Article 63 of the Statute appeared to leave no discretion, as it stated that ‘the Registrar shall notify’ (emphasis added). Questions relating to the construction of UNCLOS were bound to arise in the forthcoming Romania v Ukraine case.106 Accordingly, it was decided that in the future, states would be notified when the construction of these treaties looked likely to arise in a case.107

3.3.1  Third-party requests for documents in a case

29.90  A state, if it is a party to the Statute and entitled in principle to appear before the Court, may ask for copies of the pleadings and documents in a case.108 The Court shall decide that request, but there is an established pattern by which the parties to the case concerned will be consulted. If they have no objections to the request, the Court will grant it. If one party objects or both of the parties object, the request will not be granted.109

(p. 1160) 29.91  Obtaining pleadings and annexed documents will not necessarily lead to the requesting State’s being allowed to intervene under Article 62 of the Statute,110 should a state consider that it has an interest of a legal nature that may be affected by the decision in the case. Requests for pleadings and documents fall under the Rules of Court, and the views of the parties may assume great importance. A request to intervene is governed by the Statute, however, and the views of the parties—though they will be ascertained—will not be paramount. There are statutory criteria to be met, and it is for the Court, the guardian of the Statute, to meet them—even if the parties are in agreement to allow the intervention requested.111

29.92  The absence of the specific requirements for intervention under Article 62 of the Statute has meant that—provided the parties have no objection—the Court will, under Article 53(1) of the Rules of Court, allow the passing of documents even before the merits.

3.3.2  Requests to public international organizations under Article 34 of the Statute

29.93  The Court has the authority to request information it perceives to be relevant to cases before it from public international organizations. Public international organizations may also present such information on their own initiative.112 Other provisions apply when the treaty before the Court is the ‘constituent instrument’ of a public international organization, or is an ‘international convention adopted thereunder’. In either of these circumstances, the Registrar shall notify the public international organization concerned. Further, the Registrar shall communicate to it copies of all the written proceedings.113 Whether a convention is the constituent instrument of the organization is a clear enough provision. Whether it is an ‘international convention adopted thereunder’ may be open to different views. The UNCLOS is a convention adopted by the Third UN Conference on the Law of the Sea, but the history of that Convention shows a very close relationship with the UN organization. The 1948 Convention on the Prevention and Punishment of Genocide has indeed been perceived as having been adopted ‘under’ the UN.114

(p. 1161) 29.94  Generally speaking, whether a convention has been adopted ‘under’ an international organization does not much matter, because the Registrar will in any event, under Article 40(3) of the Statute, inform the Secretary-General of a new case, thus triggering the latter’s entitlement to make submissions on his or her own initiative should he or she so choose.115

29.95  When the Court decides to notify a public international organization, it will usually communicate to it copies of the written pleadings in accordance with Article 34(3) of the Statute and Article 69(3) of the Rules of Court, together with the indication of the convention(s) concerned.116 The exception to this practice of transmitting the written pleadings is when it is already known that the international organization will (p. 1162) not wish to submit observations, or because the written pleadings relate to a phase of the case in which the interpretation of the ‘constituent instruments’ or ‘international convention’ is not in issue.

29.96  Lastly, it may be noted that while amended Article 43 of the Rules allows international organizations to submit observations if they wish, that clause does not permit the Court to request submissions from the organizations concerned.

3.3.3  Notifications to international organizations themselves parties to a treaty likely to be construed by the Court

29.97  It has long been possible for the European Union (EU) itself to be party to a treaty.117 When the EU is party to a treaty, the treaty’s terms bind all its members.118

29.98  This possibility has had implications for the practice of the ICJ regarding notifications. Today the matter is governed by Article 43 of the Rules, which was revised by adding new paragraphs in September 2005. It is now the case that in these circumstances the Court is required to consider whether the Registrar shall notify the international organization that a treaty to which it is a party may be in issue in a case before the Court.119 It will be seen that notification is possible but not automatic, with the Court taking into account in particular whether such notification should be done only when jurisdiction is established.

29.99  It was necessary to amend Article 43 of the Rules to achieve this outcome, as neither the prior wording of Article 63 of the Statute, nor that of Article 34(2), appeared (p. 1163) further capable of an interpretation that could achieve the desired end.120 The French text of Article 34(3) could possibly have been interpreted to mean that notification of an international organization would indeed be required with regard to all treaties adopted by an international organization whose constituent instrument provided it with the capacity to enter into treaties.121 However, English was the original drafting language of Article 34(3) of the Statute.122

29.100  Although the revision of Article 43 of the Rules was directed to such a possibility, the practice has been modest to date. During the Fisheries Jurisdiction (Spain v Canada) case,123 it was noted that the Court might be called upon to construe the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, to which the EC/EU, rather than its members, was a party. Although the issues and difficulties described above were referred to in deliberations, the matter was put aside until the Court had resolved the major jurisdictional issues in the case.124

29.101  The EU, a party to UNCLOS, was notified pursuant to amended Article 43(2) of the Rules of Court in the Nicaragua v Honduras case.125 The Court was informed that the EU did not intend to submit observations in the case.126

29.102  In the Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua)127 and Aerial Herbicide Spraying (Ecuador v Colombia),128 not only were the parties (p. 1164) party to the Pact of Bogota notified under Article 63(1) of the Statute, but so was the OAS notified in accordance with Article 34(3) as amended.129

3.4  Advisory Opinions

29.103  The second function of the Court—the rendering of Advisory Opinions—has been a relatively infrequent activity, but one leading to important case law.

3.4.1  Requesting an Advisory Opinion

29.104  Under Article 96 of the Charter, the General Assembly and the Security Council are the UN organs authorized by the Charter itself to request an Advisory Opinion ‘on any legal question’. Article 96(2) of the Charter provides that other UN organs and specialized agencies may be authorized by the General Assembly to request Advisory Opinions ‘on legal questions arising in the scope of their activities’.130 However, the Court retains the right to decide whether the terms of Article 96(2) have been complied with in the particular case.131

29.105  Approximately 60 per cent of requests to the ICJ for Advisory Opinions have come from the General Assembly. Occasionally a resolution containing a request may be adopted unanimously,132 or with only favourable votes and abstentions.133 Sometimes the opposition of certain states to an adopted resolution has been regarded as significant.134 The size of and participation in majorities may be of political significance, but for the Court all that is relevant is that the requested opinion is contained in a resolution that has been validly adopted.

(p. 1165) 29.106  Of course, for various reasons, the General Assembly has on several occasions declined to pass a resolution as requested by some of its members, requesting an Advisory Opinion.135

29.107  One request for an Advisory Opinion was made by the General Assembly through a resolution passed at an Emergency Special Session.136 The Uniting for Peace Resolution provides for the transfer of a matter from the Security Council to the General Assembly, when it may appear to the latter that the Security Council has failed to fulfil its responsibilities for the maintenance of international peace and security because of the lack of unanimity among the Permanent Members.137

29.108  In the event, the Security Council had declined to ask for an Advisory Opinion on the Wall. The International Court, in first addressing this aspect of the request made of it by the General Assembly, stated:

The General Assembly could adopt any resolution falling within the subject matter for which the Session had been convened, and otherwise within its powers, including a resolution seeking the Court’s opinion.138

29.109  The Security Council has only once requested an Advisory Opinion,139 through Resolution 284 (1970). Various other proposals made to the Security Council have not proceeded to the making of a request.

29.110  The Economic and Social Council (ECOSOC) has to date requested an Advisory Opinion from the Court twice. That principal organ had been authorized by the General Assembly to request an Advisory Opinion of the Court ‘on legal questions arising within the scope of the activities of the Council’.140 In each of these cases the (p. 1166) Court has found it necessary first to confirm that the requests arose within the scope of activities of the Council.141

29.111  There have been several administrative tribunals within the UN system, including the Administrative Tribunal of the World Bank, the Administrative Tribunal of the IMF, and the Administrative Tribunal of the ILO. UNESCO, IFAD, and the Permanent Court of Arbitration, amongst others, have accepted the jurisdiction of the Administrative Tribunal of the ILO (ILOAT). The UN’s Administrative Tribunal (UNAT) was established by General Assembly Resolution 351 (IV). As a result, the ICJ issued three Advisory Opinions reviewing judgments of UNAT.142 As the ICJ became busier, there was an initiative at the Court in the 1990s to end such UNAT appeals, based on the idea that the ICJ should not be the final court of appeal for employer–staff disputes. Such disputes did not fall within the ICJ’s expertise in general international law and also took up valuable time that could be spent on the settlement of inter-state disputes. The General Assembly removed the provision for review of UNAT decisions by the ICJ in 1995, observing that it had ‘not proved to be a constructive or useful element in the adjudication of staff disputes within the Organization’.143

29.112  In 2008, by a decision to become operational in July 2009,144 UNAT was changed from its old form into a two-tier system. The UN Dispute Tribunal (UNDT) became the tribunal of first instance, and the new UNAT became the second tier. Its judgments are final and without appeal (subject to revision proceedings before UNAT itself).145

29.113  Nonetheless, the possibility of ICJ review still existed in the Statute of the ILOAT.146 In 2012, the ICJ reviewed a judgment of the ILOAT concerning the non-renewal of a contract of an IFAD employee. Once again, the ICJ was not pleased to be hearing such a case. It was critical of the unequal position of the parties before the Court: only the employer and not the employee could challenge a decision of the ILOAT, and communications from the employee had to be transmitted to the Court through the IFAD. The Court noted that

(p. 1167) questions may now properly be asked whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals. While the Court is not in a position to reform this system, it can attempt to ensure, so far as possible, that there is equality in the proceedings before it.147

29.114  However, on 7 June 2016, the General Conference of the ILO repealed both Article XII of its Statute and Article XII of the Annex, being the provisions that allowed for the review procedure of the ICJ. In the relevant resolution (GEN 2016/40), the Conference stated that it was conscious that these provisions had not allowed for ‘equality of access to justice for employing institutions and officials alike’.

3.4.1.1  The Court’s jurisdiction, in a particular case, to give an Advisory Opinion

29.115  In rendering an Advisory Opinion, the Court will first ensure that it has the jurisdiction to respond.

29.116  It is necessary to ensure that the organ or agency is acting within the scope of its authorization in making the request for an Advisory Opinion.148

29.117  The General Assembly and the Security Council may, as indicated in Article 91(1) of the Charter, request an Advisory Opinion on any legal question.

29.118  The question has arisen as to whether Article 12(1) of the Charter is to be read as meaning that a request by the Assembly for an Advisory Opinion would be ultra vires and not capable of falling within Article 96(1) should the Security Council be already seized of the same subject matter.149 The Court has answered this in the negative, observing that a request for an Advisory Opinion was not a ‘recommendation…with regard to [a] dispute or situation’.150

29.119  It is necessary, for the Court to establish that it has jurisdiction, for it to be sure that the question on which it is requested to give its opinion is a legal question. To establish this, the Court will look at the facts of a particular case.151 Neither the fact that (p. 1168) there are political aspects to the opinion sought, nor that certain reference is made to domestic constitutional acts in the materials provided to the Court, deprives a question of its legal character, answerable by reference to international law.152

29.120  It has also been put to the Court that the Assembly lacks the authority to ask for an Advisory Opinion while it is meeting in Emergency Special Session, the more so when the matter is still before the Security Council, which has not asked the Court for such advice.153 The Court has noted an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter, offering examples.154

29.121  The Court also rejected Israel’s contention that it was incorrect for the 10th Emergency Session to be reconvened while a regular session was in progress.155

3.4.1.2  Exercise of the Court’s discretion under Article 65 of the Charter

29.122  A variety of matters routinely concern the Court in this context. Jurisdiction allowing the Court to decide a dispute between two or more states is of course dependent upon consent to jurisdiction by the parties having been established. It is certainly envisaged that an Advisory Opinion may be requested ‘upon a legal question actually pending between two or more States’.156

29.123  The Eastern Carelia case157 is frequently cited for the proposition that the Court will lack jurisdiction in a litigation when a decision is sought in circumstances where the interests of a third party will necessarily be affected. The proper scope of that finding is well explained in the Western Sahara case.158

29.124  Moreover, certainly there is a tension between the concept of consent’s being required for adjudication and the envisaged possibility of an opinion notwithstanding a pending legal question between two or more states.

29.125  Although Article 65 of the Statute provides that ‘[t]he Court may give an advisory opinion’ (emphasis added), the Court has not interpreted this as giving it full discretion to decline to render an opinion. The Court has made clear that an opinion given to a UN (p. 1169) organ ‘represents its participation in the activities of the Organization, and, in principle, should not be refused’.159 But in the Western Sahara Advisory Opinion, the Court recalled that the lack of consent of an ‘interested State’160 continues to be relevant not for the Court’s competence, but for the appreciation of the propriety of giving an opinion.

29.126  In the event, the Court has never yet found that the issues of propriety discussed in abstracto should preclude it from answering a request from a duly authorized organ. It has, in this regard, given an Opinion even where there was a lack of consent by an interested state, where the Assembly was seeking advice in exercising its mandate-supervisory powers,161 or was engaged in its task of decolonizing a non-self-governing territory162 or asking how to carry out its budgetary tasks in relation to contested peacekeeping expenses.163

29.127  It has been found sufficient that, even when not engaged in such a task, the organ concerned and the UN generally have had the issue upon which an Advisory Opinion is requested for a long time upon the agenda.164 These grounds had great pertinence in the Kosovo Advisory Opinion.

3.4.2  Procedure for Advisory Opinions

29.128  After a request for an Advisory Opinion has been made by the General Assembly, Security Council, or ECOSOC, the Court receives from the Secretary-General a dossier of relevant documents, statements, maps, resolutions, etc. Such dossiers are submitted in accordance with Article 65(2) of the Statute and never suggest an answer to the issues put to the Court for its Opinion. Where an authorized organ of the UN requested the Opinion, the Legal Counsel of the UN will always prepare the dossier of all necessary material on behalf of the Secretary-General. This is an obligation under Article 65(2) of the Statute and Article 104 of the Rules.165

29.129  Where a request for an Advisory Opinion has been made by a specialized agency, the Legal Counsel of that agency will have been asked by the Director-General or equivalent to prepare a dossier of relevant instruments, etc to assist the Court.

(p. 1170) 29.130  At the same time, the Court will start to put in place the necessary proceedings for the case to move forward.

29.131  As the Court is the principal judicial organ, and a main organ, of the UN, a request for an Advisory Opinion is given priority in the Court’s scheduling. On occasion the requesting organ has described the matter as urgent. The Court has in its meetings discussed whether it must accept the characterization as ‘urgent’. While the matter remains uncertain as a question of law,166 the Court will try to respond promptly to an authorized request characterized as ‘urgent’, without distinction placed on whether the author is a principal organ or not.167

29.132  The Court will notify those states and those entitled to appear of the time limit for written observations on the subject matter of the opinion sought.168

29.133  It is only after that time limit has expired that the time is set for oral hearings. The Court can now respond to queries from the legal advisers of member states as to the period during which oral hearings will be held. The Registrar will, in due course, inform the participants as to how long these proceedings will last and as to what states had put in written observations.

29.134  What follows after the submission of the written observations often requires the consideration of the Court. The procedure is not set in stone, and the discretion that the Court may exercise contrasts with the procedure followed in contentious cases.

29.135  There is no second round of written observations: the theory is that it is for states or participating specialized agencies or international organizations to seek to assist the Court, not to dispute with each other.169

29.136  Will states, eligible agencies, and international organizations be invited to participate in the oral proceedings only if they had made written statements? Here precedents have varied and the Court possesses a large discretion.170 The Registrar, upon instructions of the Court, will ask those who have submitted written observations whether they also wish to participate in the oral proceedings to follow. It is not unusual for a (p. 1171) state, agency, or international organization to be satisfied with having had the opportunity to make written submissions.

29.137  Conversely, the Court will generally not accept participation in the oral phase by those states or authorized agencies or entities that have not put in written observations.171

29.138  It is wholly unusual for those participating in the oral phase to call witnesses.172