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[p.162]
The International Court of Justice,
Composed as above,
After deliberation,
Makes the following Order:
Having regard to Articles 31 and 48 of the Statute of the Court and to
Articles 17 and 35 of the Rules of Court,
Having regard to the Special Agreement concluded on 24 May 1986 between the
Republic of El Salvador and the Republic of Honduras for the submission of a
land, island and maritime frontier dispute between the two States to a
chamber of the Court consisting of three Members of the Court and two judges
ad hoc chosen by the Parties, [p163] Having regard to the notifications made
by the Parties of the choice by them of judges ad hoc, namely the choice by
El Salvador on 7 March 1987 of Mr. Nicolas Valticos, and the choice by
Honduras on 8 April 1987 of Mr. Michel Virally,
Having regard to the Order made by the Court on 8 May 1987 whereby it
decided to accede to the request of the Governments of El Salvador and
Honduras to form a special chamber of five judges to deal with the case, and
further declared that at an election held on 4 May 1987 Judges Oda,
Sette-Camara and Sir Robert Jennings were elected to form, with the judges
ad hoc chosen by the Parties, a chamber to deal with the case, and that
accordingly such a Chamber was duly constituted by the Order, composed of
Judges Oda, Sette-Camara and Sir Robert Jennings, and Judges ad hoc Valticos
and Virally; and
Whereas Judge ad hoc Virally died on 27 January 1989;
Whereas by letter dated 9 February 1989 the Agent of Honduras informed the
Court that his Government had chosen Mr. Santiago Torres Bernardez to sit as
judge ad hoc in place of the late Judge ad hoc Virally;
Whereas pursuant to Article 35, paragraph 3, of the Rules of Court a copy of
the letter of 9 February 1989 from the Agent of Honduras was on 13 February
1989 communicated by the Registrar to the Agent of El Salvador, who was
requested to furnish such observations as the Government of El Salvador
might wish to make;
Whereas after a number of communications had been addressed to the Court by
both Parties, the Agent of El Salvador informed the Court of the final
position of his Government by a letter received in the Registry on 30
October 1989 from which it appears that El Salvador has no objection to the
choice of Mr. Torres Bernardez;
Whereas no objection to that choice appears to the Court itself,
The Court,
Unanimously,
Declares that the Chamber formed to deal with this case is composed as
follows: Judge Sette-Camara, President of the Chamber; Judges Oda and Sir
Robert Jennings; Judges ad hoc Valticos and Torres Bernardez.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirteenth day of December, one thousand nine
hundred and eighty-nine, in three copies, one of which will be [p 164]
placed in the archives of the Court and the others transmitted to the
Government of El Salvador and the Government of Honduras, respectively.
(Signed) Jose Maria Ruda,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Shahabuddeen appends a separate opinion to the Order of the Court.
(Initialled) J.M.R.
(Initialled)E.V.O.
[p 165]
Separate opinion of judge Shahabuddeen
Today's Order, which is related to a small category of Orders of recent
vintage, involves legal issues the importance of which is not lessened by
reason of their not being readily apparent on the face of the document. One
such issue concerns the precise legal character of the Order. It seems to me
that there could be a serious question as to what it is in law that the
Court is doing in making the Order. On one possible interpretation I could
not support the Order, on another I could. I feel obliged, therefore, to
explain the basis on which I do support it, lest my support be understood as
implying acquiescence in an interpretation which I cannot accept.
As indicated in the Order, there is no objection by El Salvador to the
choice by Honduras of a replacement ad hoc judge. It being the case that the
Court itself has no objection, and there being no doubt on the matter, it
follows that no decision is called for under Article 35, paragraph 4, of the
Rules of Court. So far as any objection or doubt is concerned, therefore,
the question whether a formal Order is required does not arise.
The remaining questions which fall for consideration are (i) whether an
Order is otherwise required, and, if so, (ii) whether it is required for the
purpose of legally constituting another person as a replacement ad hoc
judge, or (iii) whether it is required for the purpose of simply recording
such replacement. Ordinarily, I would answer the first question in the
negative and thus not reach the second and the third. In the circumstances
of this case, however, I would answer the first in the affirmative, the
second in the negative and the third in the affirmative. My reasons follow.
As to the first question, since the Order of Court of 8 May 1987 (I.CJ.
Reports 1987, p. 12) did formally mention the names of the two ad hoc judges
who were to be members of the ad hoc Chamber thereby formed, it would seem
to follow as a logical extension of the drafting of that Order that the
death of one of them and his replacement by another person should be
reflected in an appropriate amendment of that Order by a new Order. That, in
brief, is the ground on which I agree with the making of the new Order.
The second and third questions involve an inquiry into the precise juridical
character of the new Order. The present state of the law being seldom, if
ever, ascertainable without recourse to the past, it appears to me that the
inquiry referred to cannot be intelligently pursued in isolation from
previous legal developments. The matter is in particular [p 166] complicated
by the circumstance that it has not been customary to make a formal Order
relating specifically to the appointment of ad hoc judges (as distinguished
from entitlement to appoint), the fact of their appointment being generally
simply recited as part of the procedural history of the case in the
introductory parts of the next Order or decision of the Court in the case.
Two exceptions relate respectively to the case concerning the Frontier
Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1985, p. 7) and the
present case (I.C.J. Reports 1987, p. 12). The Orders of Court in these two
cases show the election of three named Members of the Court and the addition
of two named ad hoc judges (who, indeed, had been chosen before the election
of the other judges), making a Chamber of five. That was not the course
taken in the first ad hoc Chamber case, namely, the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America) (I.CJ. Reports 1982, pp. 8-9). In that
case the Order of Court constituted a Chamber comprising five named Members
of the Court elected by it (including a Member of United States
nationality), and went on to note the fact
"that the Acting President, in the exercise of his powers under Article 31,
paragraph 4, of the Statute of the Court, has requested Judge Ruda [one of
the five elected judges] to give place in due course to the judge ad hoc to
be chosen by the Government of Canada, and that Judge Ruda has indicated his
readiness to do so".
The choice later made by Canada was not made the subject of a specific Order
of Court; it was merely narrated as a fact in the recitals of the
subsequent Order by which time-limits were fixed for pleadings {I.C.J.
Reports 1982,ð.16).
A movement in favour of mentioning the names of ad hoc judges in the Order
of Court setting up an ad hoc Chamber seems to have occurred in association
with a movement away from the procedure observed in the GulfofMaine case
whereby a Member of the Court, having been elected to the Chamber, would
stand down at the request of the President in favour of an ad hoc judge to
be later named by the State concerned. This standing-down procedure was
required in the case of all ad hoc judges in all chambers. It is still
required by Article 31, paragraph 4, of the Statute in relation to all
chambers and by Article 17, paragraph 2, of the Rules of Court (amended
specifically in 1978 to provide for this) in relation to ad hoc chambers in
particular. The subsequent movement away from that procedure, as it was
applied in the Gulf of Maine case, seemed inextricably linked with, and to
have followed as the practical consequence of, the working of another part
of Article 17, paragraph 2, of the Rules of Court (first introduced as
Article 26, paragraph 1, of the 1972 Rules) which in substance sought to
confer on the parties a right to have their views taken [p 167 into account
by the Court as to the particular Members of the Court who should be elected
by the Court to an ad hoc chamber. The object seems to have been "to accord
to the parties a decisive influence in the composition of ad hoc Chambers"
(Eduardo Jimenez de Arechaga, "The Amendments to the Rules of Procedure of
the International Court of Justice", American Journal of International Law,
Vol. 67,1973, p. 2).
Without examining the legal implications of these developments, but against
the background which they represent, I come now to the juridical character
of the Order made today: is it constitutive of an appointment made by the
Court of a new ad hoc judge ? Or is it merely a formal judicial record of an
appointment of a new ad hoc judge made by the State concerned? In short,
who appoints an ad hoc judge? Is it the Court? Or is it the State concerned?
It is, I believe, common to speak of an ad hoc judge being appointed by the
State concerned. On the other hand, the case can be made that the admission
by the Court of an ad hoc judge to the Bench constitutes the exercise of a
power of appointment by the Court granted to it by Article 31, paragraphs 2
to 6, of the Statute (see Georg Schwarzenberger, International Law as
Applied by International Courts and Tribunals, Vol. IV, p. 374). This view
commands respect, and so I proceed to consider some of the matters which
might be opposed to the more common usage.
Article 7 of the Rules of Court relating to the admission of ad hoc judges
to sit on the Bench of the Court would seem to contemplate the procedure
visualized by Article 20 of the Statute reading:
"Every Member of the Court shall, before taking up his duties, make a solemn
declaration in open court that he will exercise his powers impartially and
conscientiously."
The requirement to make this declaration is imposed on ad hoc judges by
Article 31, paragraph 6, of the Statute. It seems reasonably clear, however,
that the requirement is directed not to appointment but only to assumption
of duties. The text of Article 20 of the Statute implies that the person
concerned is a judge even before he makes the declaration. The admission
procedure seems, therefore, to leave open the question by whom and as from
when is a person appointed an ad hoc judge.
Article 35, paragraph 5, of the Rules of Court states, "A judge ad hoc who
has accepted appointment but who becomes unable to sit may be replaced"; but
there seems to be no necessary implication that the "appointment" referred
to is one made by the Court. In the Namibia case (I.CJ. Reports 1971, p. 19,
para. 10) and the Western Sahara case (I.C.J. Reports 1975, p. 15, para. 8),
in both of which the Court used the word "appointment" with reference to ad
hoc judges, it would appear that the question which the Court was seeking to
determine was not whether it should appoint ad hoc judges (which would have
assumed that it had the power to do so), but whether the required conditions
were satisfied so as to entitle the States concerned to do so. This, I
think, [p 168] was how Judge Fitzmaurice understood the position in the
Namibia case, in which he said (dissenting):
"The Court's rejection of the South African request to be allowed to appoint
a judge ad hoc in the present case was embodied in the Order ofthe Court of
29 January 1971.. “ (I.C.J. Reports 1971, p. 308, para. 17.)
That understanding, that the appointment is to be made by the State
concerned, does not seem inconsistent with the case concerning the
Continental Shelf (Libyan Arab Jamahiriya/Malta) (I.C.J. Reports 1984, p.
5) where paragraph 3 ofthe Judgment ofthe Court reads:
"Since the Court did not include upon the bench a judge of Libyan or of
Maltese nationality, each of the Parties proceeded to exercise the right
conferred by Article 31, paragraph 3, of the Statute to choose a judge ad
hoc to sit in the case. On 27 July 1982 the Libyan Arab Jamahiriya
designated Mr. Eduardo Jimenez de Arechaga, and the Parties were informed on
8 October 1982, pursuant to Article 35, paragraph 3, of the Rules of Court,
that there was no objection to this appointment; on 26 April 1983 Malta
designated Mr. Jorge Castaneda, and on 30 May 1983 the Parties were informed
that there was no objection to this appointment."
Though the matter could be argued both ways, I prefer the view that the
notification "that there was no objection to this appointment" could not
constitute an act of appointment by the Court itself. On the contrary, it
presupposed the existence of an appointment made by some other authority.
The language in the quoted passage seemed to be equating a "choosing" by the
State concerned with a "designation" by it, and in turn equating a
"designation" by the State with an "appointment" by it, all three concepts
being used interchangeably.
Earlier usage of relevant terms may also be consulted. Article 27 ofthe
second part ofthe Root-Phillimore plan read: "If... there is no judge upon
the Court belonging to one ofthe litigating States, that State shall...
appoint a judge" (Permanent Court of International Justice, Advisory
Committee of Jurists, Proces-Verbaux ofthe Proceedings ofthe Committee, June
16th-July 24th 1920, with Annexes, The Hague, 1920, p. 327). Judge Hudson
spoke similarly, using the word "chosen" interchangeably with the word
"appoint" (Manley O. Hudson, The Permanent Court of International Justice,
1920-1942, New York, 1943, pp. 181, 276, 361-364, and the references therein
given). So also did Fachiri (A. P. Fachiri, The Permanent Court of
International Justice, 2nd ed., 1932, p. 59; and see later Shab-tai Rosenne,
The Law and Practice ofthe International Court, 1965, Vol. 1, pp. 205-210).
Absolute consistency of usage cannot be predicated. Thus, the records ofthe
Washington Committee of Jurists 1945 state that "Judge Hudson noted that
under paragraph 2 of Article 26 [of the Statute] the [p 169] Court could not
appoint ad /zocjudges", language which might be thought to suggest that, in
cases in which an ad hoc judge could be appointed, it is the Court which
makes the appointment {Documents of the United Nations Conference on
International Organization, San Francisco, 1945, Vol. XIV, p. 224).
Generally speaking, however, almost all of the references in the relevant
correspondence and discussions were to ad hoc judges being appointed by the
parties (see, for example, P.C.I.J., Series D, No. 2, pp. 177,215; P.
C.I.J., Series D, Third Addendum to No. 2, pp. 26,31 -33,306, 386-394, 422,
478-491; the Losinger case, P.C.I.J., Series C, No. 78, pp. 392-393; League
of Nations, Committee of Jurists on the Statute of the Permanent Court of
International Justice, Minutes, Geneva, 1929, p. 53, per M. Fromageot; and
the "Report of the Informal Inter-Allied Committee on the Future of the
Permanent Court of International Justice", American Journal of International
Law, Supplement, Vol. 39, 1945, p. 12, para. 41). The Permanent Court of
International Justice itself spoke in terms of ad hoc judges being appointed
by the parties. Thus, in the case of the Customs Regime between Germany and
Austria (P.C.I.J., Series A/B, No. 41, p. 90), the Court formally decided
that there was "no ground in the present case for the appointment of judges
ad hoc either by Austria or Czechoslovakia" (see also P.C.I.J., Series C,
No. 53, p. 189). Similar language was used by the Court in the case of the
Consistency of Certain Danzig Legislative Decrees with the Constitution of
the Free City (P.C.I.J., Series A/B, No. 65, pp. 70-71. And see P.C.I. J,
Series E, No. 4, p. 296).
In the course of the 1922 discussions of the Permanent Court held to prepare
its first set of Rules, President Loder said "that a text would be drafted,
making it clear that", if a judge nominated under Article 31 of the Statute
were affected by the provisions of Article 17,
"by virtue of the last paragraph of Article 31 of the Statute, the
nomination of [such] a judge could, in such circumstances, be declared null
and void by the Court; in this case the right of the parties to nominate a
judge of their nationality would lapse" (P.C.I.J., Series D, No. 2, p. 119).
I incline towards Judge Hudson's opinion that the last sentence was not a
necessary consequence of what went before (Hudson, op. cit., p. 364. Cf.
Genevieve Guyomar, Commentaire du Reglement de la Com intemationale de
Justice, 1983, p. 212). As to what went before, it is noteworthy that the
suggested text, if it was drafted, was never promulgated. The explanation is
not clear, but I should not be surprised if it was connected with possible
argument that Article 17, paragraph 2, of the Statute takes the form of a
prohibition directed to an existing Member of the Court against
participating in the decision of a case in certain circumstances, with the
result that, strictly speaking, a decision of the Court under Article 17,
paragraph 3, of the Statute is confined to the effect of that prohibition on
[p 170] participation and does not encompass questions as to the validity of
membership itself. Be that as it may, it would not appear that the power to
declare a nomination null and void implies that it is the Court which is
vested with the power of appointment. Judge Fromageot put the matter this
way in 1932:
"The right of a party to appoint a judge ad hoc was not subject to the
Court's authorization; but the Court could consider whether in a particular
case the conditions to which the exercise of that right was subject were
fulfilled; if they were not, the Court could deliver an order declaring the
appointment inadmissible, but not without hearing arguments on the point."
(P.C.I.J., Series D, Third Addendum to No. 2, p. 18, footnote.)
Thus, the Order of the Court declaring the appointment inadmissible does not
diminish the fact that the appointment is nevertheless made by the party
concerned and is not subject to the Court's authorization. Paragraphs 4 and
5 of Article 35 of the Rules of Court are to be read harmoniously with this
overriding position under the Statute.
The matter is complicated by a textual change made in 1945. Article 31 of
the 1920 Statute, as amended with effect from 1 February 1936, appeared, in
the English text, to be using the words "chosen", "selected" and "appointed"
interchangeably in relation to national judges. In particular, persons
"chosen" to sit as judges under Article 31, paragraph 2, of the Statute were
clearly equated with "judges specially appointed by the parties", as so
referred to in paragraph 4 of the Article. Since the word "appointed" was
replaced by the word "chosen" in 1945, this might be thought to indicate a
change of substance supportive of the opposite view. And the strength of
that argument is recognized. But the structure of the machinery remained the
same and no change on this aspect was made in the French text, which had
used the word "designes" where the English text had used the word
"appointed". This being so, if ad hoc judges were regarded as "appointed by
the parties" and not by the Permanent Court, it is difficult to see how the
mere change of wording in the English text in 1945 could imply that ad hoc
judges were now to be appointed by the present Court. Possibly the change in
the English text was attributable to considerations of style, as indeed was
suggested by Judge Hudson (Manley O. Hudson, "The Twenty-Fourth Year of the
World Court", American Journal of International Law, Vol. 40, 1946, p. 29).
The official records of the sixth meeting of the Advisory Committee of
Jurists of the San Francisco Conference, where the change was made, offer no
explanation {Documents of the United Nations Conference on International
Organization, San Francisco, 1945, Vol. XVII, p. 413).
It may be added — though here I tread with particular diffidence — 12 [p
171] that the relevant words in the French text (which did not materially
change on these aspects) were "designer", "designation" and "designes". The
word "designation" has been defined to mean inter alia, "Indication d'une
personne determinee pour occuper un poste ou remplir une mission ..."
(Vocabulaire juridique, publie sous la direction de Gerard Cornu, Presses
universitaires de France, 1987, p. 260). The key expression in Article 31,
paragraph 2, in the French text of the existing Statute reads, "toute autre
partie peut designer une personne de son choix pour sieger en qualite de
juge". The word "designer", read with the word "choix", may mean something
more than a simple choice; it would seem to connote the full juridical act
denoted by the English word "appoint". On the other hand, while the word
"appoint" may not always mean "choose", it can and sometimes does (see
Corpus Juris Secundum, Vol. 6, pp. 100-101, and State of New Jersey v.
Provenzano (1961) 169 A 2d 135, 34 N.J. 318). It seems to follow that the
English word "choose" and the French word "designer" were both intended, in
the particular context in which they were used, as the juridical equivalent
of the English word "appoint".
Against this background, Article 31 of the Statute may now be looked at a
little further. Article 31, paragraph 2, says "any other party may choose a
person to sit as judge". The import of that language is brought out in the
reference in Article 31, paragraph 3, to parties proceeding "to choose a
judge as provided in paragraph 2 of this Article". Seemingly, the person
chosen under paragraph 2 is regarded as a judge once chosen. Article 31,
paragraph 4, likewise speaks of "the judges specially chosen by the parties"
(emphasis added). And Article 31, paragraph 6, states:
''Judges chosen as laid down in paragraphs 2,3 and 4 of this Article shall
fulfil the conditions required by Articles 2,17 (paragraph 2), 20 and 24 of
the present Statute. They shall take part in the decision on terms of
complete equality with their colleagues." (Emphasis added.)
The exercise of the power of choice seems directly constitutive of the
status of an ad hoc judge.
The right to appoint an ad hoc judge touches the composition of the Court
and consequently is directly governed by the Court's constituent instrument,
namely, its Statute. Article 31 is the particular provision of the Statute
concerned with the process of constituting a person as an ad hoc judge. It
does not seem to offer the Court a role at any point in that process,
either directly or indirectly through the other provisions referred to in
it. The limits of the Court's rule-making power under Article 30 of the
Statute (however generously construed) would not enable it, by making Rules
of Court, to assume a role in that process not entrusted to it by the
Statute. The Statute appears to leave the matter to the State concerned. [p
172] This would accord with the fact that the institution of ad hoc judges
as part of the composition of the Bench of the Court was effectively a
limited carry-over from arbitral experience.
In sum, it is difficult to identify any acts of the Court from which an ad
hoc judge may be said to derive his authority to act. Though recognizing the
force of arguments to the opposite effect, on balance I prefer the view that
the appointment of such a judge is constituted by the act of the State
concerned in choosing him, the role of the Court being limited to the
negative one of determining whether any ground (whether or not going to the
validity of his appointment) exists for debarring him from sitting in the
case. If this is correct, it leads to the view that the Order made today is
not constitutive of an appointment made by the Court but is merely a formal
judicial record of an appointment made by the State concerned. I would like
in turn to record that it is on the basis of this understanding that I
support the Order.
(Signed) Mohamed Shahabuddeen. |
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