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[p3]
The International Court of Justice,
Composed as above,
After deliberation,
Makes the following Order:
Having regard to Articles 26, 27, 48 and 62 of the Statute of the Court,
Having regard to Articles 81, 83, 84, 85 and 90 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,
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 [p 4]
Honduras to form a chamber of five judges to deal with the case, and
further declared that a Chamber to deal with the case was duly constituted
by that Order, with the composition therein stated, and having regard to the
Order made by the Court on 13 December 1989 following the death of one of
the judges ad hoc sitting in the Chamber whereby the Court declared the
Chamber to be composed as therein stated; and
Whereas on 17 November 1989 the Republic of Nicaragua filed in the Registry
of the Court an Application for permission to intervene in the case, which
Application was stated to be made by virtue of Article 36, paragraph 1, and
Article 62 of the Statute of the Court;
Whereas the Government of Nicaragua contends that its request for permission
to intervene is a matter exclusively within the procedural mandate of the
full Court, "not only because it is an incidental proceeding but also for
... reasons of elemental equity (that of consent and that of the equality of
States)";
Whereas the Parties to the case were informed by letter of 14 December 1989
that the Court had decided to afford the Parties the opportunity of
submitting to the Court their observations on the question thus raised,
i.e., whether the Application for permission to intervene is to be decided
by the full Court or by the Chamber, and that the procedure contemplated by
Article 83, paragraph 1, of the Rules of Court remained reserved pending
settlement by the Court of that preliminary question; whereas such
observations were received in the Registry on 12 January 1990; whereas
copies of these observations were transmitted to Nicaragua which was
informed that it might submit its own further observations on the question,
and whereas Nicaragua submitted such observations on 1 February 1990; and
whereas the Court, having considered all the observations submitted,
concluded that it was sufficiently informed of the views of the States
concerned, without there being any need for oral proceedings, which the
Rules of Court did not require in this context, and which neither Nicaragua
nor the Parties had requested;
Whereas under Article 26, paragraph 2, of the Statute the Court has power to
form a chamber to deal with a particular case, and consequently to regulate
matters concerning its composition; whereas it is for the tribunal seised
of a principal issue to deal also with any issue subsidiary thereto; whereas
a chamber formed to deal with a particular case therefore deals not only
with the merits of the case, but also with incidental proceedings arising in
that case (cf. Frontier Dispute, Provisional Measures, Order of 10 January
1986, I.CJ. Reports 1986, p. 3; Elettronica Sicula S.p.A. (ELSI), I.CJ.
Reports 1989, p. 42, para. 49);
Whereas the rule of law that "every intervention is incidental to the
proceedings in a case" {Haya de la Torre, I.CJ. Reports 1951, p. 76),
applies equally whether the intervention is based upon Article 62 or Article
63 of the Statute; [p 5]
Whereas the question whether an application for permission to intervene in
a case under Article 62 of the Statute should be granted requires a judicial
decision whether the State seeking to intervene "has an interest of a legal
nature which may be affected by the decision" in the case, and can therefore
only be determined by the body which will be called upon to give the
decision on the merits of the case;
Whereas furthermore a State which has submitted a request for permission to
intervene on which a decision has not yet been taken "has yet to establish
any status in relation to the case" (Continental Shelf (Tunisia/ Libyan Arab
Jamahiriya), Application to Intervene, Judgment, I.CJ. Reports 1981, p. 6,
para. 8), and therefore a State requesting such permission must, for the
purposes of the decision whether that request should be granted, take the
procedural situation in the case as it finds it;
Whereas in its Application for permission to intervene Nicaragua states that
"The practical consequence of a favourable response to the present request
will be the reformation of the Chamber as presently constituted and the
re-ordering of the written proceedings as arranged by the Order of 27 May
1987. Whilst my Government is bound to take all available steps in order to
protect its legal interests, it is concerned to proceed in a spirit of
goodwill and co-operation in face of a procedure which has already been
initiated. Consequently, it is the intention of my Government to propose not
a reformation of the Chamber and its jurisdictional basis tout court but
only the making of those changes strictly necessary in order to maintain the
minimum standards of efficacy and procedural fairness" (para. 23),
and that
"Nicaragua in the alternative would request that, for those reasons of
elemental fairness explained above ..., the Court should, in any case,
exclude from the mandate of the Chamber any powers of determination of the
juridical situation of maritime areas both within the Gulf of Fonseca and
also in the Pacific Ocean and, in effect, limit the Chamber's mandate to
those aspects of the land boundary which are in dispute between El Salvador
and Honduras" (para. 24);
Whereas, in the first place, while Nicaragua has thus referred to certain
questions concerning the composition of the Chamber, it has done so only in
contemplation of a favourable response being given to its request for
intervention; whereas, in the second place, while Nicaragua contemplates a
limitation of the mandate of the Chamber, its request to that effect is put
forward only "in the alternative"; whereas the Court is thus not called upon
to pronounce on any of these questions;
Whereas the mention in the Application of these questions, which are [p 6]
thus contingent on the decision whether the application for permission to
intervene is to be granted, cannot lead the Court to decide in place of the
Chamber the anterior question whether that application should be granted;
The Court,
by twelve votes to three,
Finds that it is for the Chamber formed to deal with the present case to
decide whether the application for permission to intervene under Article 62
of the Statute filed by the Republic of Nicaragua on 17 November 1989
should be granted.
In favour: President Ruda; Vice-President Mbaye; Judges Lachs, Oda, Ago,
Schwebel, Sir Robert Jennings, Bedjaoui, Ni, Evensen, Guillaume and Pathak;
Against: Judges Elias, Tarassov and Shahabuddeen.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-eighth day of February, one thousand
nine hundred and ninety, in four copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of El
Salvador, the Government of Honduras and the Government of Nicaragua,
respectively.
(Signed) Jose Maria Ruda,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Oda appends a declaration to the Order of the Court.
Judges Elias, Tarassov and Shahabuddeen append dissenting opinions to the
Order of the Court.
(Initialled) J.M.R.
(Initialled) E.V.O.
[p 7]
Declaration of judge Oda
While I am in full agreement with the Court in its view that:
"it is for the Chamber formed to deal with the present case to decide
whether the application for permission to intervene under Article 62 of the
Statute filed by the Republic of Nicaragua on 17 November 1989 should be
granted",
I nonetheless consider that, in this instance, the Court does not need to
express that view in the form of an Order. The competence of the Chamber
formed under Article 26, paragraph 2, of the Statute to deal with any
application to intervene is, in my view, unequivocally established by
Article 62 of the Statute, read together with Article 90 of the Rules of
Court which states that:
"Proceedings before the Chambers mentioned in Article[s] 26 ... of the
Statute shall, subject to the provisions of the Statute and of these Rules
relating specifically to the Chambers, be governed by the provisions of
Parts I to III of these Rules applicable in contentious cases before the
Court",
and by Article 27 of the Statute, which provides that "[a] judgment given by
any of the chambers provided for in Article[s] 26... shall be considered as
rendered by the Court". "Intervention" is one of the "Incidental
Proceedings" for which provision is made in Section D of Part III of the
Rules of Court ("Proceedings in Contentious Cases"). Permission to intervene
in a case being dealt with by a chamber can properly be requested only of
that chamber; and it is in the nature of the present case that any approach
made to the full Court by a third State cannot, however labelled, be seen as
constituting a proper application for permission to intervene. The Court was
accordingly under no obligation to ascertain the views of the Parties to the
case with regard to this aspect of Nicaragua's Application. The Application
for permission to intervene that Nicaragua addressed to the Registrar of the
Court on 17 November 1989 could have been dealt with by the Chamber at once.
Although Nicaragua, in its Application to the full Court, undoubtedly did
request permission of the Court to intervene, making it clear that it
thereby meant the full Court, it also referred to "[t]he practical
consequence of a favourable response to the present request", namely, "the
reformation of the Chamber as presently constituted". In other words,
Nicaragua contemplates the "reformation" of the Chamber seised of the
present case by the Order of 8 May 1987 (as complemented by the Order of 13
December 1989). In the alternative, Nicaragua contemplates suggest-[p 8]ing
that the Court should exclude from the mandate of the Chamber some of the
powers with which it had previously been invested. In either event a request
of this kind, addressed to the full Court by a State not party to the case,
is not one which can be entertained under any of the provisions of the
Statute or Rules of Court that govern the Court's procedures. Furthermore,
to the extent that such "reformation" might involve a claim by the
intervener, or would-be intervener, to be entitled to appoint a judge ad
hoc, such a claim could only properly be considered by the Chamber, but not
by the full Court, as is implied in Article 26, paragraph 2, of the Statute
and Article 17, paragraph 2, of the Rules of Court (both of which are
chiefly concerned with the initial or original constitution of a chamber),
and as is apparent from the very character of intervention as an incidental
proceeding. Once a chamber has been constituted, the powers of the full
Court are, in my view, limited, so far as the composition of that chamber is
concerned, to the filling of any vacancy in the original constitution that
may arise as a result of the death, resignation or incapacity of an original
member of the chamber. It would have been preferable in my view for the
Court to have incorporated an explicit finding in that sense into the Order
which it has found it necessary to make.
(Signed) Shigeru Oda
[p 9]
Dissenting opinion of judge Elias
I wish to dissent from the Order made by the Court because I believe that
Nicaragua's Application for permission to intervene should be heard and
disposed of by the full Court and not by the Chamber.
My first reason is based on the main question of the scope of chamber
jurisdiction: the scope of the jurisdiction of this Chamber, or of any other
chamber composed by the Court under the present Rules, is neither
definitive nor final, so that one cannot regard jurisdiction as being
transferable holus bolus from the International Court of Justice itself to
its affiliate envisaged in Article 26 of the Statute, or by any other text.
My second reason is the almost absolute one that Article 27 of the Statute
provides clearly that "A judgment given by any of the chambers provided for
in Articles 26 and 29 shall be considered as rendered by the Court". It must
follow that the Court and all its Members are bound by the judgment of a
chamber, but not necessarily by a judgment arrived at by whatever means, or
in defiance of a rule of justice overlooked or misconceived, or one
subsequently overruled by the Court in the long run. This is so because,
even though every Member of the Court is bound by the decision of the
chamber, no non-member of the chamber has the chance or indeed the right to
take part or to intervene in the work of the chamber before its decision is
handed down. This means that there is no opportunity for any Member to
criticize, or to point out any lacunae before the case is ended by the
particular chamber; nor has the Court any opportunity to intervene. Yet
according to the present Statute the decision is one by which the Court must
be regarded as also bound, without having had any opportunity of
interference.
It is, however, inconceivable that the jurisdiction as conferred upon the
Court by Article 36 of the Statute does not admit of any exception, and
binds only the Court within the meaning of the law as envisaged by it. If,
for any reason, a chamber exercises so-called jurisdiction which is vitiated
by any rule of law or of justice, a judgment delivered by it may not be
accepted in every respect as ipso facto binding, even though that judgment
is apparently unexceptionable otherwise. It therefore follows that, unless
Article 26 of the Statute itself, or the implementing Article of the Rules
by which chambers are established, so define the scope and purpose of a
chamber formed to deal with a particular matter referred to it, there
cannot be a wholesale transfer of general jurisdiction of the Court by the
assignment of a particular case to a particular chamber. It remains to be
proved that a chamber is the equivalent of the Court in all respects. It may
be noted that under Article 30 of the Statute the Court reserves the
exclu-[p 10]sive right to frame "rules for carrying out its functions. In
particular, it shall lay down rules of procedure" (emphasis added). This
shows that the chamber is not entirely its own master, and that it is
possible that certain aspects of jurisdiction are residual or exerciseable
only by the Court itself.
When the chamber procedure was conceived and framed — a process which may be
regarded as having been somewhat hurried — not enough attention was paid to
refining and considering its full implications in the administration of
justice. That this has been so can easily be shown by going through the
arcanum of decisions so far delivered under the chamber procedure since the
wholesale adoption of the chamber procedure in the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area. The entire
machinery of chamber procedure has been shown time and again to be in need
of a thorough overhaul, especially from the point of view of its implication
in the declaration of general principles of international law, like that of
intervention, which is necessarily wider than the narrow issues which
Article 26 envisaged as the only work for a chamber. The chamber cannot be
asked to undertake the finding of general principles of public international
law, and is therefore not given the same authority and jurisdiction as the
Court, unless specific provision is made in a particular case in the
establishment or provenance of the chamber.
Finally, the present Order is too narrow, and seems consumed by
preoccupation with a narrow conception of intervention, a concept which in
all cases is wider than the Court Order itself, or even its broader
implications. The Order, in refusing to allow the request of Nicaragua to be
dealt with by the Court fails to refer to the relevant consideration that it
may raise problems such as the appointment of an ad hoc judge or other
issues of the composition of the Chamber itself. If such problems were
handled by the Court the matter could be dealt with by handing back the
request of Nicaragua to the Chamber for disposal as appropriate. The
Chamber cannot be expected to refer such matter or matters to the full Court
for directions several times in succession in the course of its treatment of
a single application. Clearly, a chamber of equal competence or
jurisdiction cannot be expected to have matters referred in this way to
"its" own organ within the ICJ system. The Chamber must also never be
allowed to deal with such issues as appointment of an ad hoc judge, another
problem of general international law the scope of which is too wide for the
Chamber in any event.
(Signed) Ò. Î. Elias.
[p 11]
Dissenting opinion of judge Tarassov
I have unfortunately been obliged to vote against the Order by which the
Court has decided that the Application by Nicaragua for permission to
intervene under Article 62 of the Statute in the case concerning the Land,
Island and Maritime Frontier Dispute (El Salvador/Honduras) should be dealt
with by the Chamber formed to deal with the case.
The Court substantiated its Order by invoking the existing rule according
to which the request for permission to intervene should be dealt with by the
organ which is to decide the merits of the case, because "every
intervention is incidental to the proceedings in a case" (Haya de la Torre,
I.C.J. Reports 1951, p. 76).
The decision of the Court would not have given rise to any doubts on my part
if Nicaragua's Application had not raised some very important issues and had
not related to the specific character of the case and the composition of the
Chamber formed to deal with it. In fact this Application goes much further
than does an ordinary request for permission to intervene.
First of all, the Applicant considers that the existing dispute relating to
the legal situation in the islands and maritime areas both within and
adjacent to the Gulf of Fonseca is of a trilateral, rather than a
bilateral, character (para. 2 (e) of Nicaragua's Application). The
Applicant further states that:
"In a situation in which the consideration of the status of the Gulf
necessarily involves the three riparian States, two of these States have
been given the opportunity to create a timetable and a procedural agenda
from which Nicaragua is excluded and the content of which was decided upon
without Nicaragua's consent." (Ibid., para. 13; emphasis added.)
This leads the Applicant to express the view that:
"The practical consequence of a favourable response to the present request
will be the reformation of the Chamber as presently constituted and the
re-ordering of the written proceedings as arranged by the Order of 27 May
1987." (Ibid., para. 23; emphasis added.)
Nevertheless, Nicaragua goes on to say that its intention is:
"to propose not a reformation of the Chamber and its jurisdictional basis
tout court but only the making of those changes strictly necessary [p 12]in
order to maintain the minimum standards of efficacy and procedural fairness"
(Nicaragua's Application, para. 23; emphasis added).
It also says that, as an alternative follow-up to its Application, it may
request that:
"the Court should, in any case, exclude from the mandate of the Chamber any
powers of determination of the juridical situation of maritime areas both
within the Gulf of Fonseca and also in the Pacific Ocean and, in effect,
limit the Chamber's mandate to those aspects of the land boundary which are
in dispute between El Salvador and Honduras" (ibid., para. 24; emphasis
added).
In that event, Nicaragua would be willing:
"to submit to the Court or a Chamber duly appointed, if El Salvador and
Honduras so agree, the decision on the determination of the juridical
situation of the maritime areas both within the Gulf of Fonseca and also in
the Pacific Ocean" (ibid.; emphasis added).
All these statements make it quite clear that, in the Applicant's view, the
present Chamber formed by the Court on the basis of a compromis between El
Salvador and Honduras, without the participation of Nicaragua, can only
become appropriate for the consideration of its Application if it is
reformed, whether wholly or in part. Alternatively, the mandate of the
present Chamber should be confined to the bilateral land frontier dispute
between El Salvador and Honduras and a new chamber should be formed with the
participation of Nicaragua on an equal footing with the initial Parties. It
is obvious that all the proposed transformations, i.e., the full or partial
reformation of the existing Chamber, or the modification or limitation of
its mandate, cannot be effected by the existing Chamber itself. Only the
full Court, which formed the present Chamber to deal with a land, island and
maritime frontier dispute between El Salvador and Honduras and thus
conferred upon it its mandate "to deal with the present case" (I.C.J.
Reports 1987, Order of 8 May 1987, p. 12), has the power to undertake
actions of that kind.
I believe that the Applicant, when making the above-mentioned submissions,
was quite right to appeal to the body which is fully empowered to make the
required changes. Moreover, the Applicant has opted for precisely this
approach, emphasizing in its request that the matter raised by it is
"exclusively within the procedural mandate of the full Court" (Nicaragua's
Application, Preliminary Statements, last paragraph).
There are no provisions either in the Statute or in the Rules of Court which
can be seen as prohibiting the full Court from considering these submissions
of the Applicant. Neither the Statute and Rules of Court nor [p 13] the
Court's own practice serve to deprive it entirely of functions relating to
chambers, once those chambers have been formed. It is precisely the full
Court that makes changes in the composition of a chamber, electing new
members or approving new judges ad hoc to fill any vacancies that may arise
and fixing time-limits for written proceedings. It is only natural that it
should fall to the full Court to deal with a request for the reformation of
the Chamber. It is a fact that Nicaragua's Application, intentionally
addressed to the full Court, is also directly related to the composition of
the Chamber. Of the five judges composing the Chamber, no more than a
minority of two are currently Members of the Court. (The President of the
Chamber, whose term of office in the Court has expired, continues to sit in
the Chamber in accordance with Article 17 of the Rules of Court. The other
two judges are judges ad hoc chosen by El Salvador and Honduras
respectively.)
It is clear that the Court, which is responsible for the Chamber it has
formed, has full confidence in the high professional skills of its members
and in their judicial impartiality. It should be presumed that the Applicant
has the same confidence. It is nonetheless very difficult to ignore the fact
that the initial Parties have exercised a certain and by no means negligible
influence on the composition of the Chamber, not only by choosing their
respective judges ad hoc but also by giving the President of the Court their
views "regarding the composition of the Chamber", in application of Article
17 of the Rules of Court, even though Article 26, paragraph 2, of the
Statute expressly provides that the parties are only required to approve the
Court's determination of "The number of judges to constitute such a
chamber..." (Emphasis added.)
Article 17, paragraph 2, of the Rules of Court permits a broader
interpretation of this provision of the Statute, enabling the President to
ascertain the views of the parties regarding those judges whom they would
wish to be elected as members of a chamber. The Court, when forming a
chamber, normally complies with those views. It follows that the initial
parties do exercise an influence not only on the numerical, but also on the
personal composition of the chamber.
The intervening State does not have this possibility and its procedural
position before a chamber is not on a par with the position of the initial
parties. Such an inequality might be especially harmful to the intervening
party if it were to seek the reformation of the existing composition of a
chamber or a modification of that chamber's mandate.
In the observations of Nicaragua on the question whether the Application
for permission to intervene falls within the jurisdiction of the Chamber
formed to deal with the case or that of the full Court, the Applicant says
that:
"To consider that a challenge to the formation of the Chamber, made because
of the extent of the competence ratione materiae with [p 14]which it was
anointed, should be aired before the same Chamber, would certainly be a
complete surrender of the sovereign will of the intervening party, to the
will of the original parties as reflected in the formation of the Chamber."
The Court could not fail to take any account of the Applicant's arguments
and, by a purely administrative decision, simply transfer the request to the
President of the Chamber without giving it any consideration. By its
decision of 14 December 1989 the Court, as can be seen from the present
Order, afforded the two Parties to the case:
"the opportunity of submitting to the Court their observations on the
question ... raised [by Nicaragua], i.e., whether the Application for
permission to intervene is to be decided by the full Court or by the
Chamber..."
In accordance with the same decision of 14 December 1989, copies of those
observations were transmitted to Nicaragua which then submitted its further
observations. In the observations of Honduras dated 15 January 1990, the
Government of that State informed the Court that, in its view "[t]he full
Court has no jurisdiction over the case between Honduras and El Salvador..."
and "that Nicaragua's application to intervene must be heard by the Chamber
and not by the full Court".
The Government of El Salvador, in its observations dated 8 January 1990,
informed the Court of its intention "to oppose the Nicaraguan application to
intervene, including the request for reformation of the Chamber ...".
However, this opposition to Nicaragua's proposed intervention and the
proposed reformation of the Chamber did not lead El Salvador to concur with
Honduras in rejecting, in principle, the possibility that the full Court
might consider Nicaragua's Application. Its stated view was that:
"Believing that the reasons for opposing the application are equally valid
before the full Court or before the Chamber, the Government of El Salvador
has no observations to make on the preliminary question of whether the
Nicaraguan application falls within the jurisdiction of the Chamber or that
of the full Court."
What main conclusions can be drawn from these views of the initial Parties?
In the first place, it is quite clear that their general attitude is not
favourable to that aspect of Nicaragua's Application that relates to its
request that the full Court, not the Chamber, should consider its
suggestions regarding a possible reformation of the Chamber or
reformulation of its mandate, and that they are, to put it bluntly, not in
favour of any intervention by Nicaragua in the case. Could such a negative
attitude have some impact upon the way in which the Applicant's request may
be con-sidered by the Chamber in its present composition? In theory, there
could not be any such impact as all the members of a chamber, including the
judges ad hoc, are independent of the parties and preserve their full
impar-[p 15]tiality during the whole of the proceedings in the case.
Nobody, of course, should still be mindful of the procedural positions of
the Parties during the formation of the chamber, and the various options
available to them at that time. The same considerations hold good for all
chambers and might be only slightly more specific in case of chambers formed
on the basis of a compromis. Parties which have agreed by compromis to
submit their dispute to a chamber may, if they both are not satisfied with
the course of the proceedings or with the intermediate decisions of the
chamber, put an end to it by a simple withdrawal of their compromis —
although, in theory, the fact that this possibility exists can in no way
exert pressure on the chamber. However, the problem is whether it is right
that a State which has to protect what may be vital interests, and which
finds itself in procedural circumstances like those currently affecting the
procedural position of Nicaragua, should find itself entirely at the mercy
of a theoretical construction of this kind. I am of the opinion that the
Court, taking account of all the circumstances of the case and of the
different submissions made in the Nicaraguan Application which, as was shown
earlier, goes far beyond a simple request for permission to intervene and
raises issues with which the Chamber is not competent to deal, should itself
give the Applicant an opportunity to defend its own position before it in
oral proceedings — or at least to defend its position with regard to the
procedural issues. I think that such an attitude on the part of the Court
would be particularly justified in that its governing documents provide it
with no direct indications as to how to deal with an application for
permission to intervene in a case pending before a chamber, in the event
that such an application simultaneously makes a request for the reformation
of that same chamberFN1. Any decision of the Court will accordingly
establish an important precedent for future practice. This is why its
decision on this matter should be based, not merely on a set of formal rules
relating exclusively to simple requests for permission to intervene, but on
a thorough analysis of all the procedural situations brought into being by
Nicaragua's requests and on a complete disclosure of the real procedural
positions of each Party involved.
---------------------------------------------------------------------------------------------------------------------
FN1This lacuna in the guiding documents of the Court is quite
understandable, however, as the Statute of the Court and the Rules of Court
(even the most recent 1978 version) were elaborated and adopted at a time
when ad hoc chambers for the most part did not exist. It is well known that,
if procedural rules are to be both sound and helpful, they must be developed
on the basis of prolonged practical experience and embody the sum total of
such experience. The theoretical elaboration of the present rules in this
field was mainly based on the good intention of making it easier for States
to attain a peaceful settlement of their disputes while enhancing the
activity of the International Court of Justice. It is significant that it is
precisely the practical experience of recent chamber cases that has aroused
interest in this useful and promising institution among the judges of the
International Court of Justice (see dissenting opinion of Judge Shahabuddeen
to this Order, p. 21, infra, footnote).
---------------------------------------------------------------------------------------------------------------------
[p 16]
Unfortunately, the Court was satisfied with very short (one or two pages)
written observations of El Salvador and Honduras and those States were,
moreover, in accordance with the decision of the Court, permitted to deal
only with the one question of "whether the Application for permission to
intervene... [was] to be decided by the full Court or by the Chamber"
(emphasis added). The Court did not invite the Parties in the case to
express their opinions regarding the proposed reformation of the Chamber and
the other procedural questions raised in the Application.
Under such circumstances, I am convinced that oral proceedings with the
participation of all the States concerned are more than necessary. However,
the Order of the Court is in fact based only on the view of one State out of
the three which were permitted to submit their observations, i.e., on the
view of Honduras. As has been shown, El Salvador evaded the question put to
it merely by saying that "the Government of El Salvador has no observations
to make". Nicaragua once again reiterated its earlier submission that "the
full Court has the competence to decide the issue raised... and in the
circumstances of this case should decide in favour of exercising that
competence".
I am convinced that such differences of opinion should have been seen as an
additional reason for the Court to hold hearings. I am also aware of yet
another consideration in support of this view. According to Article 27 of
the Statute, a judgment given by an ad hoc chamber is to be considered as
rendered by the full Court. As a result of the present Order adopted by a
majority of judges, the Applicant will have no more than two possible
courses of action — it can either abandon its intention of preserving and
defending its interests against possible violation as a result of judicial
processes in the International Court of Justice or it can submit its
Application to the Chamber. If it opts for the latter course, the Applicant
will have to abide by the decision of five judges, only two of whom are
Members of the Court, but whose decision will have the status of a judgment
of the Court. In the event that permission to intervene is summarily
rejected, or if the judgment on its merits fails to provide a proper
safeguard of its lawful interests as an intervening Party, the Applicant
will not be able to appeal, as the Court's judgment will have been rendered!
However, in theory, it might be possible in such a situation for the
judgment to be adopted by a majority of non-members of the Court, with both
Members of the Court voting against it. This possibility is no mere paradox
— there are very important practical consequences for the Applicant. If the
case were not to be considered by a chamber of the Court but by an
Arbitration Tribunal, and if the decision of that Tribunal were to be seen
by the third State as harmful to its interests, such a State would have the
possibility of trying to defend those interests before the International
Court of Justice, regardless of the fact that the Tribunal in question might
have consisted entirely of Members of the International Court. However
since, in the instant case, the Parties have decided not to submit their
dispute to arbitration, but to refer it to a chamber of the Court, the
third State is automatically deprived of that recourse to the full Court.
Only as a [p 17]
result of hearings, with the full participation of all the States concerned
and in which all those States would have had equal procedural rights, could
the Court have properly arrived at a prima facie conclusion as to whether or
not there were any possibilities of intrusion into the sphere of interests
of the third State. Were it to have found that there were no such
possibilities, it might have rejected the submissions of the State seeking
permission to intervene without referring its Application to the Chamber.
At the same time, the Court could have given some kind of assurance to the
Applicant that its lawful rights would not be adversely affected (as was
given to Italy in the Continental Shelf (Libyan Arab Jamahiriya/Malta)
case). If, on the contrary, the Court were to have found that certain
interests of the third State could be called into question or directly
threatened by a decision of the Chamber given as between the initial
Parties, the Court would have been able to establish, in consultation with
the President of the Chamber and those same Parties, such procedural
guarantees as would effectively have enabled that State to defend its
rights. While both the Parties to the main dispute and the Applicant have
expressed, in a preliminary form, their very different views on the question
of where the Application should be dealt with, one cannot exclude the
possibility that they might have been able, with the help of the Court, to
find some mutually acceptable compromises in the course of oral
proceedings.
My vote against the present Order constitutes a reflection of my sincere
hope that the decision of the Court, contained in this Order, will not be
given the status of a precedent, serving to preclude — on purely
formalis-tic grounds — any possibility of the Court considering questions
relating to cases being dealt with by chambers but which those chambers are
not able to resolve. Any such justification of future inaction could not
only lead to a depreciation of the Court's own role, but might also bring
about an unfortunate depreciation of the functioning of chambers by placing
an insurmountable barrier between them and the full Court and, as a
consequence, estranging them from the principal judicial organ of the
United Nations. If that happened, ad hoc chambers would be transformed into
some kind of hybrid between international judicial process and arbitration.
(Signed) Nikolai K.Tarassov.
[p 18]
Dissenting opinion of judge Shahabuddeen
The ad hoc chamber system established in 1945 by Article 26, paragraph 2,
of the Statute of the Court is a valuable one. I make it clear at the outset
that the burden of this dissenting opinion is concerned not with the system
as so established, but only with certain related procedural arrange-ments
adopted in 1972 and first utilized in 1982. In my view, the Nicara-guan
Application arises from, and illustrates, the existence of certain problems
in these procedural arrangements. If these problems are resolved, it will be
possible for the ad hoc chamber system to exercise the authority of the
Court more credibly and more convincingly than it can at the moment, and so
more effectively fulfil the expectations alike of the founders of the system
as of States which have recourse to it, including States wishing to exercise
their right under the Statute to apply for permission to intervene in cases
pending before such a chamber. To what problems am I then referring?
Judged objectively and by universally accepted judicial standards, the
selection of its members having been substantially determined or influenced
by the Parties under the procedural arrangements referred to, the Chamber in
this case cannot, in my respectful view, discharge the functions of the
International Court of Justice, in its character as a court of justice, in
relation to an application by a non-party for permission to intervene in
the case pending before it. By itself disclaiming jurisdiction and instead
leaving the Applicant with no recourse except to the Chamber, the Court
effectively denies the Applicant its right to have its Application under
Article 62 of the Statute judicially determined in the ordinary way. If, as
I consider, this is the reality, the legality of the arrangements which
produce so seemingly unacceptable a result would appear to be squarely in
issue, with important questions unavoidably arising as to the funda-mental
nature of the Court itself and its relationship with its chambers. I have
given careful thought to the possibility of discovering some way of
reconciling my thinking on these matters with the position taken by the
Court in the Order made by it today. It is with much regret, courtesy and
respect that I find that I have the misfortune to conclude that the existing
procedural arrangements for forming ad hoc chambers are not valid, but that,
if they are, Nicaragua's Application for permission to intervene should have
been heard and determined by the full Court. My reasons for so holding are
given in Parts I to VI as to the first point, and in Part VII as to the
second.[p 19]
Part I. Preliminary
The Court's Dilemma
The finding of the Court that it is for the Chamber to deal with
Nicaragua's Application is based essentially on the ground that the Chamber
was formed to deal with the particular case and must also deal with
proceedings incidental to it. In the normal case, I would agree. But, in
the circum-stances of this case, is the decision as logical as the Court
suggests ? Under the Court's own Rules, as amended in 1972 and revised in
1978, apart from two of the five members of the Chamber being ad hoc judges
appointed as of right by the existing Parties, the remaining three were
elected by the full Court to the Chamber after the Court had taken into
account the views of the existing Parties as to the particular Members of
the Court who should be so elected. Whether it is in fact so or not — and it
is the Court which knows best — the Applicant is entitled to, and, as
appears from its Application and written arguments, clearly does, entertain
a reasonable apprehension that the three Members so elected were elected in
conformity with the expressed wishes of the existing Parties. In substance,
therefore, the Applicant is being told by the Court that it has no option
but to submit to a Chamber all of whose five members it is reason-ably
entitled to feel have been practically hand-picked by the existing Parties.
Conceivably, Nicaragua may nevertheless accept that option and go to the
Chamber, and, if it does so, its Application may conceivably be granted by
the Chamber. However, this possibility cannot affect the legal situation, as
I see it. For it is not difficult to see why Nicaragua has not so far gone
to the Chamber and why it has in fact come to the full Court — an attitude
which is in itself the first practical illustration of how far an
interested non-party State is likely to regard such a chamber as a
legitimate manifestation of the Court. When its presentation is fairly read,
Nicara-gua obviously takes the view that the Chamber, as it stands, cannot
discharge the functions of the International Court of Justice, considered
as a court of justice, in relation to itself. That that is the central
issue, inescapably presented, seems plain to me. Without first dealing with
that issue, it is, in my view, logically impossible to make an intelligent
appreciation of the problems raised by Nicaragua's Application.
I have nevertheless asked myself whether it could persuasively be said that
this is not the appropriate moment to consider the matter. However, if it is
not, I have difficulty in seeing what moment will be appropriate so long as
the system continues to operate. On the other hand, should the system cease
to operate, it could hardly then be judicially appropriate to consider the
matter: it would have become academic. Passivity at this stage is not a
guarantee against the occurrence of other and possibly graver problems yet
to come, for the implications of the new system cut so deep and run so wide
as inevitably to surface one day or another as an issue demanding not to be
ignored. I believe that day has come. To fail to [p 20] consider the matter
now would be but sad proof of the common observation that an innovation,
once allowed, gathers momentum which progressively subdues any inclination
to inquire, sometimes to the point of producing misgiving that the very
assertion of a right to do so might be received with surprise and disbelief.
Often, indeed, it is the law which reconciles itself to reality. Still,
cases may arise in which that reconciliation cannot be made — cases, for
example, in which the application by the Court of a text taken at its
received face value yields a result so deeply offensive to basal norms of
justice as to make it impossible for the Court responsibly to avert its gaze
from the necessity to examine the foundations of the system which leads to
that result. It seems to me that here is such a case.
In a highly regarded statement the Court some three decades ago enunciated
the reassuring and important principle that the "Court itself, and not the
parties, must be the guardian of the Court's judicial integrity" {Northern
Cameroons, I.C.J. Reports 1963, p. 29). If, as I believe, this was not mere
judicial rhetoric, that duty rests throughout with the Court and must be
discharged by it whether or not invoked by a party (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276(1970), I.C.J.
Reports 1971, p. 323, per Judge Gros, dissenting). No doubt, the Court is
not required gratuitously to examine problems which are not fairly raised by
the circumstances of a case. But I cannot think that that is the situation
here.
The problem in this case is, of course, of an institutional character: I
state most distinctly that it has nothing whatever to do with the integrity
of the very distinguished members of the Chamber. However, it does have
everything to do with fundamental concepts of justice. The leading
prin-ciple, and its applicability to this Court, are not, I think, in doubt.
It was cited by Judge Lachs in an admirable reassessment of his earlier
stand on the question whether an applicant for permission to intervene
should have been heard even if its application was inadmissible. As he
recalled, "It is, after all, 'of fundamental importance that justice should
not only be done, but should manifestly and undoubtedly be seen to be done'
(Lord Hewart in The King v. Sussex Justices, ex parte McCarthy, 1 K.B.
[1924], pp. 256 and 259)" (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) (I.C.J. Reports
1986, p. 171). That principle goes to the root of the claim of the Court to
be considered as a court of justice. This being so, the duty of the Court,
as the avowed guardian of its own integrity, to consider the implications
of that principle in this case does not depend on whether the principle has
been specifically invoked by the Applicant: it depends on whether it is
presented by the facts themselves. I think it is. As it happens, however,
the concern of the Applicant on the point is apparent both from its
Application and from its [p 21] written arguments as presented in the letter
to the Registrar from its Agent of 1 February 1990: the Applicant clearly
considers — and this indeed is the heart of its contention — that the
methods by which the Chamber has been formed do not allow it to function as
a court of justice in relation to the Applicant's case.
The vice, then, in which the Court is held is this. Regardless of ultimate
results, the Applicant has a right under Article 62 of the Court's Statute
to apply for permission to intervene. However, while closing its own doors
to the Applicant, the full Court is unable, in my view, to indicate any
judicially acceptable alternative forum to which the Applicant may turn. In
consequence, the Applicant is effectively denied its right to have its
Application for permission to intervene judicially considered.
If, as I think, this is the dilemma in which the Court is caught, I am not
able to see how it could be possible to avoid examining the legality of the
arrangements from which that dilemma springsFN1. The line between judicial
restraint and judicial abdication has to be observed if a judge's judicial
mission is to be fulfilled. For myself, I fear it would be a transgression
of that line to remain silent on the point. The justice of the case leaves
me no defensible way in which I can avoid dealing with it. I proceed
accordingly to consider it below. I am conscious of the length of that
which ensues and can only hope that the importance of the matter furnishes
some justification.
---------------------------------------------------------------------------------------------------------------------
FN1 The issue has been the subject of individual statements, made mostly out
of Court, by a number of past and present Members of the Court, and from
these I have benefited greatly and gratefully. See Judges Oda, Morozov and
El Khani in the case concerning Delimitation of the Maritime Boundary in the
Gulf of Maine Aera, I.C.J. Reports 1982, pp. 10,11 and 13 respectively;
Eduardo Jimenez de Arechaga, "The Amendments to the Rules of Procedure of
the International Court of Justice", American Journal of International Law,
1973, Vol. 67, p. 1; B. A. S. Petren, "Some Thoughts on the Future of the
International Court of Justice", Netherlands Yearbook of International Law,
1975, Vol. 6, p. 59; Mohammed Bedjaoui, "Remarques sur la creation de
chambres ad hoc àè sein de la Cour international de Justice", Societe
franchise pour le droit international, Col-loque de Lyon, Lajuridiction
international permanente, Paris, Pedone, 1987, pp. 73-78; Mohammed Bedjaoui,
"Universalisme et regionalisme au sein de la Cour internationale de Justice:
La constitution de chambres ad hoc", Liber Amicorum, Coleccion de Estudios
Juridicos en Homenaje al Prof. Dr. D. Jose Perez Montero, Universidad de
Oviedo, 1988, p. 155; Stephen M. Schwebel, "Ad Hoc Chambers of the
International Court of Justice", American Journal of International Law,
1987, Vol. 81, p. 831; Stephen M. Schwebel, "Chambers of the International
Court of Justice Formed for Particular Cases", in Y. Dinstein (ed.),
International Law at a Time of Perplexity, 1989, p. 739; Shigeru Oda,
"Further Thoughts on the Chambers Procedure of the International Court of
Justice", American Journal of International Law, 1988, Vol. 82, p. 556; Ò.
Î. Elias, The United Nations Charter and the World Court, Lagos, 1989, pp.
16 and 203 ff.; and Hermann Mosler, "The Ad Hoc Chambers of the
International Court of Justice: Evaluation after Five Years of Experience",
in Dinstein, op. cit., p. 449.
---------------------------------------------------------------------------------------------------------------------
[p 22]
The Issues
The principal point concerns the operation of Article 17, paragraph 2, of
the 1978 Rules of Court, which requires the President of the Court to
ascertain and report to the Court the views of the parties regarding the
composition of an ad hoc chamber before the Court elects Members of the
Court to be members of the chamber to hear the particular case. It is not in
question that, as Nicaragua has pointedly recalled, the intention was that,
in those views, the parties were to be free to indicate "exactly which
individual judges they desire on the Bench for that case" (Edvard Hambro,
"Will the Revised Rules of Court Lead to Greater Willingness on the Part of
Prospective Clients ?", in Leo Gross (ed.), The Future of the International
Court of Justice, 1976, Vol. 1, p. 368, cited in the letter to the Registrar
from the Agent for Nicaragua of 1 February 1990). Does this arrangement open
the door to an invasion by the parties of the proper province of the Court ?
The available material shows beyond doubt that the framing of Article 17,
paragraph 2, of the Rules of Court 1978 (in substance Article 26, paragraph
1, of the Rules of Court as amended in 1972) was motivated by a desire "to
accord to the parties", in the words of one of its principal architects, "a
decisive influence in the composition of ad hoc Chambers" (Eduardo Jimenez
de Arechaga, loc. cit., p. 2; and see ibid., p. 21). The interesting
mechanics employed in the case concerning Delimitation of the Maritime
Boundary in the Gulf of Maine Area, Constitution of Chamber (I.C.J. Reports
1982, p. 3) only served to highlight the lengths to which this purpose could
go. In that case, the parties made it unmistakably clear to the Court that
the litigation would not proceed unless the selection, as well as the timing
of the selection, of members of the chamber conformed in every material
detail to their expressed wishes. And the Court did exactly as was required.
It is scarcely worthwhile to seek to put a gloss on this as being other than
the practical result of the plainly promulgated will of the parties. Is this
speculation? Here is the declaration made by Judge Oda:
"While I voted in favour of the Order, it should in my view have been made
known that the Court, for reasons best known to itself, has approved the
composition of the Chamber entirely in accordance with the latest wishes of
the Parties as ascertained pursuant to Ar-ticle 26, paragraph 2, of the
Statute and Article 17, paragraph 2, of the Rules of Court." (Ibid., p. 10.)
The choice of language employed in Article 26, paragraph 1, of the Rules of
Court 1972 might have led, on the one hand, to some obscuring of the
possibility of the new provision being pressed to the extent to which it was
later pressed in the Gulf of Maine case, and might, on the other hand, have
been thought to leave open the possibility of an answering argument that
notification of the views of the parties to the Court still left the Court
[p 23] with the final say on selection of personnel, as indeed it did: the
Court can elect judges other than those proposed by the parties. But, to
adopt the words of Judge Gros, an approach of this kind may not unfairly be
regarded as resting on the "supposition that words can be used to suppress a
problem rather than deal with it" (Delimitation of the Maritime Boundary in
the Gulf of Maine Area, I.C.J. Reports 1984, p. 368). Delicacy in
legislative formulation could not really conceal the fact that one way or
another the parties were being conceded a substantial, if not indeed a
"decisive", say in the selection of particular judges, for it could not be
supposed that they were being accorded a right to express views which the
Court was free entirely to disregard. Judge Jimenez de Arechaga's statements
leave no room for doubt on the point. Neither do those of Judge Petren (B.
A. S. Petren, loc. cit., p. 64).
Leaving aside the question of effective dictation, the question which arises
— and it is desired to emphasize that this is the question — is whether the
new Rules could, consistently with the Statute of the Court and the Charter
of the United Nations, confer on the parties to a case a right to influence
the election of regular Members of the Court to sit on an ad hoc chamber of
the Court to hear and determine that particular case. For it is possible to
grant the good faith of, and even to commend — as I do — the intention to
promote the use of the Court, while respectfully asking whether the steps
taken in pursuance of that intention resulted in the creation of a body
different from any chamber authorized by the Statute. True, as was observed
in 1972 by the then President of the Court, "there is nothing sacrosanct
about the International Court of Justice itself in its present form and
structure" (President Sir Muhammad Zafrulla Khan, speaking on the occasion
of the fiftieth anniversary of the World Court, I.C.J. Yearbook 1971-1972,
p. 139). As he noted, within the Court's Statute provision already existed,
though not up to then utilized, for the appointment of ad hoc chambers.
Clearly, however, if something was to be done to encourage use of that
mechanism, it would be necessary to bear in mind that, while there might be
nothing sacrosanct about the Court itself in its then form and structure, if
that form and structure were in consequence to be changed, the prescribed
procedure for effecting the change should be employed.
In addition to the foregoing question of constitutionality, a second and a
third question consequentially arise. The second question concerns the
validity of the amended Rules of Court in so far as they seek to give a
judge elected to an ad hoc chamber a tenure which is greater than that of a
judge not so elected. The third question concerns the power of the Court to
reverse its previous decisions on the right of parties to influence the
composition of ad hoc chambers, and to discontinue the practice which those
decisions initiated. The first question is examined in Parts II and III. The
second and third questions are examined in Parts IV and V respectively. Part
VI sets out the general conclusions as to the status of the existing
arrangements relating to ad hoc chambers. Part VII considers the Nicara-[p
24]guan Application on the assumption that the existing Chamber is validly
constituted.
Limits of the Court's Rule-Making Power
In a general sense, the matter turns on the limits of the rule-making power
of the Court, and this aspect may accordingly be taken up in this
Preliminary Part. Article 30, paragraph 1, of the Statute reads: "The Court
shall frame rules for carrying out its functions. In particular, it shall
lay down rules of procedure." Changes made in 1945 in the English text of
the corresponding provision of the Rules of Court of the Permanent Court of
International Justice were only intended to bring it into harmony with the
previous French version (see Manley O. Hudson, "The Twenty-Fourth Year of
the World Court", American Journal of International Law, 1946, Vol. 40, p.
28; and P.C.I.J., Series D, Third Addendum to No. 2, report by Sir Cecil
Hurst, p. 758). Accordingly, recourse may be had to the learning relating to
the earlier provision in elucidating the meaning of the existing provision.
As a matter of necessity, the power conferred by the earlier provision was
used to fill certain lacunae in the Statute (Manley O. Hudson, The Permanent
Court ofInternationalJustice, 1920-1942, New York, 1943, p. 275). It could
also cover questions of internal organization of the Court (ibid., p. 270).
And, no doubt, within any applicable limitations, the Court was free to
determine the content of its Rules. It is not in issue, however, that —
"[t]he chief object with which rules of procedure are made is to inform
those who are responsible for the conduct of a case before the Court what
steps have to be taken, and when and how, for the purpose of submitting
that case to the decision of the Court" (report by Sir Cecil Hurst, loc.
cit.).
It seems safe to assume that, as regards ad hoc chambers, the existing
Statute left no lacunae which might require remedial exercise, on grounds of
necessity, of the rule-making power of the Court. In this case, nothing was
being filled in: something was being changed. Previously the selection of
serving judges to be members of an ad hoc chamber rested with the Court to
the strict exclusion of the parties. That was undoubtedly the legal
position. And it was a position which involved no gaps waiting to be filled
before the established mechanism could legally function (see Rene-Jean
Dupuy, "La reforme du Reglement de la Cour internationale de Justice",
Annuaire frangais de droit international, 1972, Vol. XVIII, p. 270). What
was undertaken in 1972 was a modification of that mechanism with a view to
making it more attractive to potential users. That did not involve the
filling in of any legal lacuna. Nor could it be said that the change made
could be justified as an exercise of the rule-making power of the Court in
[p 25] relation to matters of its internal organization. That power, as
generally understood, does not comprehend power to confer rights on external
entities over the Court's internal organization. The residual question then
is whether the change could be justified as an exercise of the rule-making
power in relation to litigation procedure.
To the question thus stated, the answer seems plainly "No". Nevertheless,
it is proposed to examine the question, first, from the point of view of
consistency of the character of an ad hoc chamber, as modified by the new
Rules, with the substantive character of the Court as visualized by the
Charter and laid down by the Statute, and, second and more specifically,
from the point of view of consistency of the new Rules with the controlling
provisions of Article 26 of the Statute. These two areas are dealt with in
Parts II and III respectively.
Part II. Consistency of the Character of Ad Hoc Chambers as Modified by the
New Rules with the Character of the Court
The single most important question in this matter is to what extent, if any,
did the constitution of the Court visualize that parties to a case could
have any influence in determining which Members of the Court should sit in
that case. An understandable predisposition to assume a general right to
exert some such influence is observable in the case of an international
tribunal, as distinguished from a municipal court; and that predisposition,
in a measure, probably underlies attitudes favourable to the new
arrangements. But the precise answer to the question posed in the case of
this particular Court must turn, I believe, on the exact juridical character
of the Court and, by extension, of its chambers. In this respect, it seems
to me that the essential distinction is that alluded to by Nicaragua in its
reference to "the institutional conception of the Court as a judicial organ
— and not one of arbitration ..." (letter to the Registrar from the Agent
for Nicaragua, 1 February 1990). I believe that distinction can bear
retracing and emphasis.
That the Court is a court of justice is obvious. Yet it may be that in that
very obviousness lurks a danger that the primal considerations involved may
be taken for granted. So it is proposed to revisit briefly the historical
character of the Court, not only with the object of regaining a feel for the
real nature of the Court, but also with a view to determining whether the
original concept still has validity, and, if it has, what are the limits of
tolerable derogations from the norm. It is particularly important to do
this for the reason that, although it would be wrong to view an
international court of justice as if it were a carbon copy of a municipal
court of justice, it would be equally misleading to suppose that there is a
total absence of [p 26] analogy in respect of the basic elements of the
concept of a court of justice.
The well-worn distinction between an arbitral tribunal and a court of
justice need not be recited (see inter alia James Brown Scott, The Status of
the International Court of Justice, 1916, p. 24). There was, indeed, some
early concern with the question whether the Permanent Court of
International Justice could be regarded as an arbitral body if it was
competent to adjudicate on purely political disputes as distinguished from
legal disputes involving political features (see Secretariat of the League
of Nations, "Memorandum on the Different Questions Arising in Connection
with the Establishment of the Permanent Court of International Justice,
Appendix", set out in Permanent Court of International Justice, Advisory
Committee of Jurists, Documents Presented to the Committee Relating to
Existing Plans for the Establishment of a Permanent Court of International
Justice, 1920, p. 115). But that possibility does not appear to have been
seriously pursued and need not detain inquiry: the Court does not regard
itself as competent to decide questions not governed by legal principles
(see inter alia Judge Kellogg's observations in the case of the Free Zones
of Upper Savoy and the District ofGex, P. C.I.J., Series A, No. 24, pp.
29-34; the Certain Norwegian Loanscase, I.C.J. Reports 1957, p. 66, per
Judge Lauter-pacht; and the case concerning Border and Transborder Armed
Actions (Nicaragua v. Honduras), I.C.J. Reports 1988, p. 91, para. 52). The
whole evolution of the thinking leading to the creation of the Permanent
Court disclosed a settled intention to create a court of justice in the
sense generally understood in municipal law. A principal feature of the new
body was that its judicial personnel were to be preordained: unlike an
arbitral body, particular judges were not to be selected by the parties for
particular cases.
In one way or another this important point was repeatedly hammered home. Its
essentials were to be found in the justly famous instructions issued by
Secretary of State Elihu Root to the United States delegation to the 1907
Hague Conference (see Secretary of State Elihu Root to Mr. J. H. Choate and
others, in James Brown Scott (ed.), Instructions to the American Delegates
to the Hague Peace Conferences and Their Official Reports, 1916, pp. 79-80.
The instructions were quoted in part by Judge Kellogg in the case of the
Free Zones of Upper Savoy and the District ofGex, loc. cit, pp. 36-37). The
principle was affirmed in the course of the proceedings of the Advisory
Committee of Jurists, 1920. The Committee clearly accepted the understanding
of the League of Nations Secretariat that the new Court, as visualized by
Article 14 of the Covenant, would "be a Court of Justice in the technical
and restricted meaning of the term. Its character would be similar... to
that of the Courts of Justice of the different countries" ("Note on the
Nature of the New Permanent Court of International Justice", in Documents,
op. cit., p. 113; and see, ibid., p. 7). The continuance of the Permanent
Court of Arbitration side by side with the new
[p 27] Court — and indeed in the same building, as is still the case — was
regarded as confirmatory of "the conclusion that the new Court will be in
principle a Court of Justice" (Documents, op. at., p. 115). The coexistence
of the Permanent Court of International Justice with the Permanent Court of
Arbitration and other tribunals of arbitration was expressly recognized in
Article 1 of the Statute of the Court reading:
"This Court shall be in addition to the Court of Arbitration organized by
the Conventions of The Hague of 1899 and 1907, and to the special Tribunals
of Arbitration to which States are always at liberty to submit their
disputes for settlement."
Parties could always go to arbitration. Now, on a potentially global basis,
they were being given a choice between that and a new piece of machinery — a
court of justice (see also Â. Ñ J. Loder, "The Permanent Court of
International Justice", in Report of the Twenty-Ninth Conference of the
International Law Association, London, 1920, p. 148).
M. Leon Bourgeois, the distinguished and learned delegate of the Council of
the League of Nations, alluded to these ideas when, addressing the inaugural
meeting of the Committee of Jurists on 16 June 1920, he said:
"The Court of Justice must be a true Permanent Court. It is not simply a
question of arbitrators chosen on a particular occasion, in the case of
conflict, by the interested parties; it is a small number of judges sitting
constantly and receiving a mandate the duration of which will enable the
establishment of a real jurisprudence, who will administer justice. This
permanence is a symbol. It will be a seat raised in the midst of the
nations, where judges are always present, to whom can always be brought the
appeal of the weak and to whom protests against the violation of right can
be addressed. Chosen not by reason of the State of which they are citizens,
but by reason of their personal authority, of their past career, of the
respect which attaches to their names known over the whole world, these
judges will represent a truly international spirit which is by no means, as
some people pretend, a negation of the legitimate interests of each nation,
but which is, on the contrary, the safeguard of these interests, within the
very limits of their legitimacy." (Permanent Court of International Justice,
Advisory Committee of Jurists, Proces-Verbaux of the Proceedings of the
Committee, June 16th-July 24th 1920, with Annexes, The Hague, 1920, pp.
7-8.)
The Report of the 1920 Advisory Committee of Jurists in turn stated: [p 28]
"In the Court of Arbitration, it falls to the parties to choose their
judges, after the commencement of the dispute; whereas in the case of the
Permanent Court of International Justice, the contesting parties no longer
have the choice of the judges." ("Report of the Advisory Committee of
Jurists", Annex No. 1 to the Proces-Verbaux, op. cit., p. 695.)
Then, after referring (p. 696) to M. Bourgeois's opening speech, the Report
added:
"In contradistinction to the Court of Arbitration, the Permanent Court of
International Justice will really deserve its name, as it will consist of
judges, who will continue to sit from one case to another; the parties will
not have to choose them for this purpose, and with one exception, which will
be dealt with later in connection with summary procedure, the parties may
not fix the number of judges." (Ibid., p. 698.)
The exception seemingly referred to draft Article 26 of the Statute
reading:
"With a view to the speedy despatch of business the Court shall form,
annually, a chamber composed of three judges who, at the request of the
contesting parties, may hear and determine cases by summary procedure."
(Ibid., p. 719.)
The parties could fix the number of judges only in the sense of opting for
this chamber with its prefixed membership of three.
How was all of this understood when the new Court was eventually
established? Addressing the Court on 15 February 1922 on the occasion of its
official opening, the Dutch Foreign Minister, M. Van Karnebeek, said:
"Your responsibility is the greater because the States, who will have
recourse to you for justice, will have renounced the right of freely
choosing their judges, an outstanding feature of the system of arbitration
which exists side by side with you under this roof." {P.C.I.J., Series D,
No. 2, p. 322.)
To which President Loder agreeably replied:
"The jurisdiction of this Court differs from arbitration. The judges are no
longer to be nominated by the parties. They form a permanent Court.
The procedure has no longer to be framed; it is laid down in the Statute and
in the Rules of Procedure.
The two institutions exist side by side; each fulfils its special duty; each
possesses its own sphere of action; both live peacefully together in this
same building, like an older and a younger sister.[p 29]
Is the younger organisation perfect? Will its Statute never require
amendment? Nothing is perfect in the hour of its birth. Here also the law of
evolution will make itself felt." (P.C.I.J., Series D, No. 2, pp. 329-330.)
So the structure of the institution could be changed and might need to be
changed. But, meanwhile, its character was that of a court of justice as
ordinarily understood. In the light of that character, it is not difficult
to imagine what might have been President Loder's reaction to a change
sought to be brought about by an amendment to the Rules of Court for the
purpose of giving the parties "a decisive influence" in the selection of
regular judges of the Court to sit on a chamber established under its
Statute, even as recast for the present Court in 1945.
This aspect may be summed up with these observations of Judge Kel-logg in
the case concerning the Free Zones of Upper Savoy and the District of Gex:
"It is evident from a consideration of the circumstances which called for
the creation of this Court and the history of its organization, as well as
from a careful examination of the Court's Statute, framed by a special
committee of jurists appointed by the Council of the League of Nations, that
this tribunal is a Court of justice as that term is known and understood in
the jurisprudence of civilized nations." (P.C.I.J., Series A, No. 24, p.
33.)
The idea that the Court was a court of justice in contradistinction to being
an arbitral body formed the ground of opposition to two important features,
namely, that relating to chambers and that relating to ad hoc judges.
Although in both cases the desired provisions were made, the material leaves
little room for doubt that the basic judicial character of the Court was
intended to prevail throughout its arrangements and functioning, save in
respect of variations clearly authorized by the Statute itself.
As regards the idea of chambers, speaking in the Advisory Committee of
Jurists in 1920, Lord Phillimore framed his opposition this way:
"The idea of 1907 to divide the Court into chambers, also is too closely
bound to the idea of arbitration, since these chambers would be formed in
casu. The Court must sit in pleno to be a real Court of Justice ... the
number of judges was of secondary importance; the essential thing was that
as far as possible all judges should sit at the same time." (Proces-Verbaux,
op. tit, 1920, p. 175.)
Referring to the proceedings of the 1920 Committee, Judge Hudson later
wrote:
"No basis for excluding some members of the Court from sitting was found,
and as the debate progressed the 1920 Committee of Jurists came to the view
that the unity of the Court required that it should [p 30] always sit
inpleno; its proposal to this effect was embodied in the text as adopted."
(Hudson, The Permanent Court of International Justice, 1943, pp. 173-174.)
The establishment of chambers was conceded as an exception to this primary
rule. As was noted by Lord Finlay, Article 25 of the Statute
.
"laid down that the full Court should sit except when expressly provided
otherwise. These exceptions were specially dealt with in Articles 26 and 27
of the Statute" (P.C.I J., Series D, No. 2, 11 February 1922, p. 28).
He accepted that the "Statute should be interpreted broadly", but would
scarcely have thought this a sufficient warrant for the Court to act through
chambers composed otherwise than as expressly authorized by the Statute
itself.
In this connection, a point of some interest is that, whereas Article 25 of
the 1920 Statute read, "The full Court shall sit except when it is expressly
provided otherwise", Article 25 of the present Statute, while retaining
those words, prudentially added the words, "in the present Statute"
(Documents of the United Nations Conference on International Organization,
San Francisco, 1945, Vol. XVII, p. 412, Sixth Meeting of the Advisory
Committee of Jurists, 12 June 1945). The official records do not show the
reason for the change, which Judge Hudson was probably right in
characterizing as "merely stylistic" (Manley O. Hudson, "The Twenty-Fourth
Year of the World Court", American Journal of International Law, 1946, Vol.
40, pp. 24-25). But, while no change of substance was involved, it would
seem clear that the stylistic change made was inspired by the thought of
bringing out and emphasizing an original principle of preeminent
importance, namely, that exceptions to the general rule that the full Court
should always sit had to be authorized by express language in the Statute
itself. Exceptions could not be added by Rules of Court.
The question is: Can it be said that an ad hoc chamber, as constituted under
the new Rules of Court, falls within an exception which is expressly
authorized by the Statute itself to the dominant rale that the Court should
sit in pleno?
As regards ad hoc judges, here too, as is well known, the opposition was
mounted on the basis that the appointment of such judges was more
appropriate to arbitral tribunals than to courts of justice. The 1920
Committee of Jurists was, of course, aware of possible objections.
Referring to a hypothetical case in which both sides had appointed an ad hoc
judge, its Report stated:
"In this particular, our Court more nearly resembles a Court of Arbitration
than a national Court of Justice. But this variation is necessary. Though
our Court is a true Court, we must not forget that it is a Court between
States. For the reasons already given, States attach much importance to
having one of their subjects on the Bench [p 31] when they appear before a
Court of Justice." ("Report of the Advisory Committee of Jurists", 1920,
loc. cit., p. 722.)
The Report thus recognized the substance of the point made by M. Loder when
he said: "If the right to choose such judges were given to the parties, this
would give the proceedings a characteristic essentially belonging to
arbitration." (Proces-Verbaux, op. cit., p. 531. See also, ibid., pp.
169-170; and B. Schenk von Stauffenberg, Statut et Reglement de la Com
perma-nente de Justice Internationale, Elements d'interpretation, Berlin,
1934, pp. 181-182.)
Thus, although it was agreed to allow ad hoc judges, it was appreciated that
this arrangement evinced an arbitral aspect which was not quite in harmony
with the fundamental judicial character of the Court as a court of justice.
The arrangement had to be fought for and justified on very special grounds
(see "Report of the Advisory Committee of Jurists", 1920, loc. cit., p. 721;
the remarks of Lord Phillimore in Proces-Verbaux, op. cit., p. 528, and of
Mr. Adatci, ibid., p. 529; the remarks of Judge Altamira on 23 June 1926, in
P.C.I.J., Series D, Addendum to No. 2, p. 26; the "Report Presented by the
French Representative, M. Leon Bourgeois, and Adopted by the Council of the
League of Nations at Its Meeting at Brussels on October 27th, 1920", in
League of Nations, Permanent Court of International Justice, Documents
concerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant and the Adoption by the Assembly of the Statute
of the Permanent Court, p. 48; and the Registrar's statement in 1932m
P.C.I.J., Series D, ThirdAddendumtoNo.2,p. 18, footnote). And these special
grounds are no doubt still valid. But a fair interpretation is that the idea
of selection of judges by the parties, which that arrangement involved, was
not intended to be extended to cases not clearly authorized by the Statute,
whether by express language or by necessary implication.
How alien to the concept of a court of justice — even an international court
of justice — is the notion of parties nominating its members, may be
gathered from the grounds on which a proposal was made and rejected in the
1920 Committee of Jurists for members of a chamber of the Permanent Court of
International Justice to be designated by the parties (Proces-Verbaux, op.
cit, pp. 183-184,517,524). M. Ricci-Busatti's written proposal to that
effect was expressly prefaced with the statement that the "Court of Justice
should be connected as intimately as possible with the Court of Arbitration,
the functions of which it merely develops" (ibid., p. 183). The summary
record of the related discussions not surprisingly showed that, in his
presentation,
"M. Ricci-Busatti personally started from an entirely different conception:
he maintained his point of view that too much distinction should not be
drawn between the new Court and the old Court of [p 32]Arbitration; that
there was no essential difference, especially in international relations,
between Arbitration and strict Justice" (Proces-Verbaux, op. cit., p. 177).
So his proposal was frankly arbitral in character. M. Loder (with whom M. de
Lapradelle agreed) in consequence had little difficulty in securing its
rejection on the ground that, contrary to M. Ricci-Busatti's conception, the
Court was indeed intended to be a court of justice (ibid., p. 178; see also,
ibid., p. 526; and James Brown Scott, The Project of a Permanent Court of
International Justice and Resolutions of the Advisory Committee of Jurists,
Report and Commentary, 1920, pp. 27-28). Once the latter view of the
character of the Court was upheld, as it was, the proposal was bound to
fall. Using language uncannily anticipatory of some used in reference to the
new Rules, M. Ricci-Busatti had urged that "it was desirable to allow the
Parties, either directly or through the President, to have a certain
influence on the composition of the section" (Proces-Verbaux, op. cit., p.
526). The idea did not find favour, M. Loder and Baron Descamps, the
President of the Committee, pointing out "that this method would too much
resemble that proper to arbitration" (ibid.). Can it be said that the
juridical character of the present Court is so signally different from that
of its predecessor as to justify acceptance now in place of rejection then?
Far from there being any difference, the present Court has repeatedly
affirmed, in relation to itself, the substance of earlier pronouncements by
its predecessor about its status as a court of justice. Despite some initial
doubt as to the precise juridical relationship between the Permanent Court,
in its advisory role, and the Council of the League of Nations, as early as
1923 the Court had occasion to observe that the "Court, being a Court of
Justice, cannot, even in giving advisory opinions, depart from the essential
rules guiding their activity as a Court" (Status of Eastern Carelia,
P.C.I.J, Series B, No. 5, p. 29). That reference to "the Court, being a
Court of Justice", was repeated by the Permanent Court in the case of the
Free Zones of Upper Savoy and the District ofGex (loc. cit, p. 15). The
emphasis has been maintained by the present Court in several cases. See, for
example, the case of the Constitution of the Maritime Safety Committee of
the Inter-Governmental Maritime Consultative Organization where the Court
said: "The Court as a judicial body is... bound, in the exercise of its
advisory function, to remain faithful to the requirements of its judicial
character." (I.C.J. Reports 1960, p. 153.) The case of the Applicability of
the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 194 7 represents a recent reaffirmation by
the Court of its status as a "Court of justice" (I.C.J. Reports 1988, p. 29,
para. 40). More particularly, using language which differences in context do
not render inapplicable to the situation being considered, in the Northern
Cameroons case the Court said:
"There are inherent limitations on the exercise of the judicial function
which the Court, as a court of justice, can never ignore. There [p 33]may
thus be an incompatibility between the desires of an applicant, or, indeed,
of both parties to a case, on the one hand, and on the other hand the duty
of the Court to maintain its judicial character. The Court itself, and not
the parties, must be the guardian of the Court's judicial integrity."
{I.C.J. Reports 1963, p. 29.)
At page 30, the Court insightfully added:
"That [judicial] function is circumscribed by inherent limitations which are
none the less imperative because they may be difficult to catalogue, and may
not frequently present themselves as a conclusive bar to adjudication in a
concrete case."
Although certain specific rules were also involved, it seems clear that the
refusal of the Court in the Free Zones of Upper Savoy and the District of
Gexcase to accede to the request of the parties that the Court should
communicate to them unofficially the results of its deliberations
illustrates the operation of an inherent limitation which the Court could
not ignore (P.C.I.J., Series A, No. 22, p. 12). That limitation flowed
essentially from the status of the Court as a court of justice. It is
possible to see a similar inherent limitation, relating to the audi alterant
partem principle, underlying much of the thinking of the Court in the
Status of Eastern Carelia case (P.C.I.J., Series B, No. 5). So too with the
cases of the Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco (I.C.J. Reports 1956, p. 77), Application for
Review of Judgement No. 158 of the United Nations Administrative Tribunal
(I.C.J. Reports 1973, p. 166) and Application for Review of Judgement No.
273 of the United Nations Administrative Tribunal (I.C.J. Reports 1982, p.
325). In the first of these Judge Winiarski noted that the
"important problem which the Court had to resolve was to reconcile its
advisory function and its character as a Court of Justice, as an independent
judicial organ of international law" (p. 104).
A like inherent limitation, it is submitted, prevents the Court from
allowing its decision as to which of its regular Members should sit in any
particular case to be in the least influenced by the contesting parties.
The history of the creation of the Permanent Court makes it clear that the
concept of a court of justice to which the Court was intended to conform
was that of a court of justice as generally understood in municipal law.
That being so, warnings about the danger of transposing municipal law ideas
to the international plane would not seem apt in this context. The fact that
the Court was to function on the international plane was not regarded as
importing any substantial modifications of the essential elements of that
concept in its application to the Court. This would seem to put limits to
attempts to justify the new system by reference to the international nature
of the Court. It is true, for example, that States which entrust [p 34] a
dispute to an international tribunal expect to have a say in its
composition and functioning (see Rene-Jean Dupuy, loc. cit., p. 272). But
if, as seems to be the case, the framers of the 1920 Statute and its
successor did, on that very ground (see the "Report of the Advisory
Committee of Jurists", 1920, p. 722, cited above), address their minds to,
and did specify, the precise extent to which States were to be permitted to
participate in the composition and functioning of the Court, is it competent
for the Court itself, by an exercise of its subordinate and limited
rule-making power, to enlarge the extent of that permissible participation
as defined by the governing instrument ? The material makes it clear that
the concept of judges being selected by the parties was regarded as being a
characteristic of arbitral procedures; that, as such, that concept was
essentially opposed to the judicial character of the Court; that, on special
grounds, it was, after anxious debate, nevertheless allowed a limited
operation within the constitution of the Court in relation to ad hoc
judges; but that this limited operation could not be extended consistently
with the judicial character of the Court without an appropriate enabling
amendment of its Statute.
Part III. Consistency of the New Rule with the Statute of the Court
The conclusion reached above is supported by a consideration of the
relationship between Article 17, paragraph 2, of the Rules of Court 1978,
and Article 26, paragraph 2, of the Statute of the Court. The latter
provision, introduced in 1945, reads:
"The Court may at any time form a chamber for dealing with a particular
case. The number of judges to constitute such a chamber shall be determined
by the Court with the approval of the parties."
Article 71, paragraph 3, of the Rules of Court 1946 correspondingly required
the President of the Court to "ascertain the views of the parties as to the
number of judges to constitute the Chamber".
The judicial character of the Court, as sought to be demonstrated above,
would seem to support an argument a contrario to the effect that the
specific reference in Article 26, paragraph 2, of the Statute to the
approval of the parties of the "number" of judges of an ad hoc chamber
(repeated, as it was, in Article 71, paragraph 3, of the 1946 Rules)
excluded an intention to give them a say also over the selection of such
judges.
Nothing in the records of the Washington Committee of Jurists 1945 and of
the subsequent proceedings at San Francisco suggests an understanding that
parties could have a right to select, or to influence the selection of,
Members of the Court to be members of a chamber (see Documents [p 35] of the
United Nations Conference on International Organization, San Fran-cisco,
1945, Vol. XIV, pp. 200-202, 221-222, 271, 282, 317, 333-334 and 834-835).
The closest one gets to any discussion of the matter is through Judge
Hudson's much quoted statement in the Washington Committee of Jurists. The
relevant part of the official records reads:
"The next question, the Chairman said, was the number of judges on chambers.
Sir Frederic Eggleston (Australia) asked whether the chamber of summary
procedure could sit at the same time as the full Court. Judge Hudson pointed
out that there had been little use of chambers and that the question had
never arisen. He pointed out that under the present Statute the Court
elected members to chambers for a given term of years and that the parties
did not decide the number or the composition of the chambers. He thought the
subcommittee was proposing a wholly different system when it provided for ad
hoc appointment of chambers with the approval of the parties." {Ibid., p.
199,16 April 1945.)
Judge Hudson's statement that under the previous Statute "the parties did
not decide the number or the composition of the chambers" was of course
accurate. The statement also shows that Judge Hudson appreciated that there
was a distinction between "number" and "composition". The new provision
spoke only of "number", and the clear tendency in the recorded discussions
was to refer to it as being so confined. However "wholly different" was the
new system, it would require a powerful sidewind to extend the explicit
reference to "number" to encompass "composition". As has been seen, the
Court itself, through Article 71, paragraph 3, of the 1946 Rules of Court,
reflected no such extension: it spoke expressly and deliberately of the
President ascertaining "the views of the parties as to the number of judges
to constitute the Chamber". One may well sup-pose that the judges who made
that Rule in 1946 were close enough to the making of the new Statute to
grasp its meaning correctly on this point. Had the intention of the Statute
been to sanction consultation of the parties on composition, it is
surprising that it should have taken the Court over a quarter of a century
to divine so important a purpose and to incorporate it in its new Rules.
Even if, which is doubtful, Judge Hudson understood matters differently,
the record does not suggest that so strange and strained an interpretation
was shared by other members of the Washington Committee of Jurists. Two of
the later speakers, Ambassador Cordova of Mexico and the Chairman of the
Committee, Mr. Hackworth, spoke only of the "number". Ambassador Cordova in
particular "pointed out that the Court was [p 36] to be given the power to
fix the number to sit in the chambers and the parties given the opportunity
to approve this arrangement" (ibid.). The chairman of the drafting committee
did subsequently say that the draft Article 26 "provided that when the Court
set up chambers to decide particular cases the approval of the parties
should be obtained. This was in harmony with the advice of three judges of
the Court" (ibid., p. 221). But it would not be right to suppose that other
members could have understood this language as embracing a requirement for
obtaining the approval of the parties for the selection of particular
judges. Referring to a statement made by Mr. Fitzmaurice on 16 April 1945,
the record reads:
"Mr. Fitzmaurice (United Kingdom) suggested that the Court should not be
obliged to set up chambers in advance but if the Court decided to establish
standing chambers the number should be fixed by the Court. If chambers were
established ad hoc, the number of judges would be fixed by the Court with
the consent of the parties. The question being put in this form, there were
21 votes in favor, and none in opposition." (Ibid., p. 202.)
The form in which the question was put and unanimously answered could hardly
have suggested to any of the participants that it concerned a requirement to
obtain "the consent of the parties" for the selection of particular serving
judges as members of an ad hoc chamber.
Judge Delgado of the Philippine Commonwealth, who spoke in the Committee of
Jurists on 18 April 1945, did speak of "the composition of the chambers",
but he did so in a manner which showed how utterly unacceptable he would
have considered the idea of the parties being given a right to influence
selection. The record reads in part:
"Judge Delgado (Philippine Commonwealth) suggested that the number of judges
to compose a chamber should be specified in paragraph 2 [of Article 26 of
the Statute] as well as in paragraph 1... The Chairman explained that in
paragraph 2 it had been desired to leave the matter to the discretion of the
parties ... Judge Delgado ... thought paragraph 2 should be consistent with
paragraph 1, and he did not wish to have the composition of the chambers
determined by political agencies." (Ibid., p. 222.)
Judge Delgado was clearly opposed to conceding control, even if limited to
"number", lest this should let in political influence over "composition".
In all the circumstances, it would require more than an isolated remark of
the kind made by Judge Hudson to evidence a credible intention to effect by
indirection an amendment of manifest substance in the inherited scheme of
the Statute of the Permanent Court — an amendment of sub-[p 37]stance
because, as Judge Hudson himself almost certainly knew (see Hudson, The
Permanent Court of IntemationalJustice, 1943, p. 179, footnote 49) and as
has been mentioned above, a 1920 proposal to permit parties to nominate the
members of a chamber had been rejected on the precise ground that "this
method would too much resemble that proper to arbitration". That ground
went of course to the heart of the judicial character of the Court. To
modify that character on the slender foundation of Judge Hudson's remark
would seem a somewhat daunting enterprise. In the North Sea
ContinentalShelf"cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), Judge Ammoun made a remark which comes to
mind: "But if such had been the intention of the authors of the Convention,
they would have expressed it, instead of allowing it to be deduced in such
a laborious fashion." {I.C.J. Reports 1969, p. 115.)
Opposing arguments have largely founded themselves on a statement, also much
quoted, made by Judge Jessup in 1970 when he said:
"It has been suggested elsewhere that if the difficulty of resort to the
International Court of Justice lies in a State's preference for a tribunal
in whose composition it will have a say, this result can be achieved by the
use of 'a Chamber for dealing with a particular case', as is authorized by
Article 26 (2) of the Statute. Under Article 31 of the Statute, the
provisions about national judges are applicable to such a Chamber so that
the Chamber could be composed of a judge of the nationality of each one of
the parties, with a third judge elected by the Court very much as the
President of the Court now often is authorized to appoint presiding
arbitrators." (Philip C. Jessup, "To Form a More Perfect United Nations",
Collected Courses of the Hague Academy of International Law, Vol. 129
(1970-1), p. 21.)
The procedure contemplated by Judge Jessup, as illustrated by himself,
(Philip Ñ Jessup, The Price of International Justice, 1971, pp. 62-64)
involved, first, an election by the Court of three of its Members to be
members of the chamber; second, if necessary, the standing down, at the
request of the President, of one or two of those elected to allow each party
to have its own judge on the chamber; and, third, the appointment of a
replacement judge or judges by each party, as may be necessary. That
procedure would not involve the parties in having a say either in the
elec-tion by the Court of the original three members of the chamber or in
the decision of the President as to which of them should stand down. If
Judge Jessup then intended that the parties should have such a say, he did
not say so in the particular passage relied upon for imputing that view to
him.
Judge Jessup's proposal for giving the parties a say in the composition of a
chamber worked itself out through the appointment of party-selected judges
to a small three-member chamber, with one or two elected judges [p 38]
yielding up their places if necessary. There seems to be nothing in his
published model which suggests that he then considered that the Rules of
Court could be amended consistently with the Statute to give the parties a
say in that part of the procedure by which the Court elects serving judges
to be members of an ad hoc chamber and the President decides which of them
should then stand down. Similar observations apply to the earlier ideas of
Mr. James N. Hyde on the subject (James N. Hyde, "A Special Chamber of the
International Court of Justice — an Alternative to Ad Hoc Arbitration",
American Journal of International Law, 1968, Vol. 62, p. 439). Both writers
would have had good reason for not going so far. The wording of Article 31,
paragraph 4, of the Statute strongly suggests that the system regulating the
sitting of party-selected judges on an ad hoc chamber assumed that the
parties had no influence on, and no advance knowledge of, the results of
the election made by the Court of serving judges to be members of the
chamber. Thus, in the case of litigating States with nationals already on
the Bench, it was only in the after-light of the results of the election
that a determination could be made by the President of the extent to which
it might be necessary to activate the procedure relating to national judges.
Nor was it a foregone conclusion that litigating States with no nationals on
the Bench would always wish to appoint ad hoc judges to a chamber; following
on an election they might conceivably be so satisfied with the resulting
composition of the chamber as to abstain from exercising their entitlement
to appoint ad hoc judges, in like manner as some States have abstained from
doing so in relation to the full Court. This system, with its associated
assumptions as to lack of influence on, or advance knowledge of, the results
of an election, was based directly on the Statute itself. And the Statute
continues in full force.
Although considering that the names of members of an ad hoc chamber who were
to be requested by the President to "step down" in favour of judges chosen
by the parties could also be the subject of consultation between the
President and the parties, Judge Jimenez de Arechaga clearly recognized that
what I would for convenience call the "standing-down procedure", as laid
down by Article 31, paragraph 4, of the Statute, would continue to apply to
such a chamber even after the 1972 amendments (Eduardo Jimenez de Arechaga,
loc. cit., p. 3). A neglect in the Rules to reflect that fact was rightly
cured by an appropriate change made in 1978 in Article 17, paragraph 2, of
the Rules. As I sought to point out more fully in the separate opinion which
I appended to the Order made in this case on 13 December 1989 (I.C.J.
Reports 1989, pp. 165-167), the prescribed procedure was correctly observed
in the case of the Delimitation of the Maritime Boundary in the Gulf of
Maine Area, Constitution of Chamber (I.C.J. Reports 1982, pp. 4,8 and 9). It
was not applied in the case concerning Elettronica Sicula S.pA. (ELSI),
Constitution of Chamber (I.C.J. Reports 1987, pp. 3-4) for the reason that
(however it came about) the [p 39] elected judges included two serving
national judges. It was not applied in the case concerning the Frontier
Dispute (Burkina Faso/Republic of Mali), Constitution of Chamber (I.C.J.
Reports 1985, pp. 6-7) nor in the case concerning the Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras), Constitution of Chamber
(I.C.J. Reports 1987, p. 10). The Orders of Court in these two cases simply
show the election of three serving judges and the addition of two named ad
hoc judges. The Court did not, as it ought to have done under the prescribed
procedure, elect five serving judges subject to two being asked to stand
down in favour of ad hoc judges to be later chosen by the parties. Contrary
to the laid down sequence, the two ad hoc judges were chosen by the parties
before the election by the Court of any serving judges. The observance of
the standing-down procedure prescribed by Article 31, paragraph 4, of the
Statute made no practical sense in a situation in which the Court was in
fact electing serving judges who had been previously designated by the
parties (see Shabtai Rosenne, Procedure in the International Court, A
Commentary on the 1978 Rules of the International Court of Justice, 1983, p.
43). The logic of allowing the parties a right to exercise "decisive
influence" over selection would naturally lead to dispensation with that
procedure. The question remains whether it was competent for the Court to
confer such a right on them by Rules of Court.
A negative answer to that question is suggested by the inescapable fact that
the standing-down procedure continues to apply to ad hoc chambers by virtue
of the express provisions of Article 31, paragraph 4, of the Statute
itself. Neither the Rules of Court nor any practice adopted by the Court can
vary the scheme as laid down in those overriding provisions of the master
law. Indeed, as has been noticed, the applicability of that scheme to ad hoc
chambers was expressly and correctly recognized by an amendment made in
Article 17, paragraph 2, of the Rules of Court in 1978. It applies to other
chambers by virtue of Article 91, paragraph 2, of the Rules. What does
therefore emerge is that the very decision to dispense with the
standing-down procedure in relation to ad hoc chambers is an indication of
the extent to which practical control over selection of serving judges as
members of such chambers has been conceded to the parties; for it is only on
this basis that the observance of a procedure still legally commanded both
by the Statute and by the Rules would become the pointless ritual which
presumably led to the decision to ignore its continuing existence in law.
It is not a persuasive answer to say that the application of the
standing-down procedure of Article 31, paragraph 4, of the Statute to
chambers dated back to 1936 before the establishment of ad hoc chambers was
visualized. Article 31, paragraph 4, was in fact modified in 1945 to reflect
[p40] other changes made in the new Statute in relation to chambers, in
consequence of which an earlier reference in that provision to Article 27
had to be deleted. In so far as concerned the applicability of Article 31,
paragraph 4, to the new Article 26, paragraph 2, relating to ad hoc
chambers, the records of the Washington Committee of Jurists for 18 April
1945 read:
"Article 31. Mr. Fitzmaurice (United Kingdom) raised the question whether
paragraph 4 of Article 31 was not already covered by paragraph 2 of Article
26. It was decided to leave paragraph 4 of Article 31 as it stood, and
Judge Hudson noted that under paragraph 2 of Article 26 the Court could not
appoint ad hoc judges. Professor Basdevant (France) noted a mistake in the
French text of paragraph 4 of Article 31." (Documents of the United Nations
Conference on International Organization, San Francisco, 1945, Vol. XIV, p.
224.)
So the relationship between Article 31, paragraph 4, and the new Article
26, paragraph 2, relating to ad hoc chambers did receive consideration. It
is reasonable to assume that if Article 31, paragraph 4, was left in a form
which made it applicable "as it stood" to the new provisions relating to ad
hoc chambers, this was because this result was deliberately intended. And it
was deliberately intended because the Statute was not based on any idea of
parties having any influence over the selection of serving judges to be
members of such a chamber. It is only if a different view is taken on this
pivotal point that the application of the standing-down procedure of Article
31, paragraph 4, to ad hoc chambers can appear aberrant (cf. Genevieve
Guyomar, "La constitution au sein de la Cour internationale de Justice d'une
chambre chargee de regler le differend de frontieres maritimes entre les
Etats-Unis et le Canada", Annuaire frangais de droit international, 1981,
Vol. XXVII, p. 220). Far from appearing aberrant to Judge Jessup, that
procedure constituted an essential building block of his 1970 model.
With respect to the argument that the express reference to "number" excludes
"composition", it has been said: "This objection is not of a very important
character since nothing in the Statute would forbid the President to
consult." (Edvard Hambro, be. cit., p. 369.) It is submitted that there is
indeed something in the Statute which forbids the President from doing so,
and that the objection based on it cannot be brushed aside as being "not of
a very important character". The whole nature of the Court, as a court of
justice, constitutes a prohibition, no less clear for being implied, against
giving the parties any say in the selection of judges to hear a case,
whether through the Rules of Court or otherwise, and whether in whole or in
part, except in the case of ad hoc judges. So fundamental was that
prohibition to the character of the Court as a court of justice, as
distinguished from an arbitral body, that it was no more necessary to
express it [p 41]
in its Statute than it would have been to do so in the constitution of any
other "court of justice" within the normal acceptation of the meaning of
this expression.
This implied prohibition is not neutralized by approaching the matter from
the point of view of the doctrine of implied powers. True, the fact that
specific powers are conferred on a body does not necessarily imply the
non-existence of others. But the latter do not float around at large. In the
last analysis, all the powers of a body must be conferred by its
constituent instrument, whether expressly or impliedly. Speaking of the
powers of the United Nations, the Court said:
"It must be acknowledged that its Members, by entrusting certain functions
to it, with the attendant duties and responsibilities, have clothed it with
the competence required to enable those functions to be effectively
discharged." (Reparation for Injuries Suffered in the Service of the United
Nations, I.C.J. Reports 1949, p. 179; emphasis supplied.)
At page 182, the Court added:
"Under international law, the Organization must be deemed to have those
powers which, though not expressly provided in the Charter, are conferred
upon it by necessary implication as being essential to the performance of
its duties." (Ibid.; emphasis supplied.)
Putting greater emphasis on the extent to which such additional powers must
be so required, Judge Hackworth, dissenting, stated:
"Powers not expressed cannot freely be implied. Implied powers flow from a
grant of expressed powers, and are limited to those that are 'necessary' to
the exercise of powers expressly granted." (Ibid., p. 198. See also, by him,
Effect of Awards of Compensation Made by the United Nations Administrative
Tribunal, I.C.J. Reports 1954, p. 80.)
The need for some limitation was also recognized by Judge Fitzmaurice in
Certain Expenses of the United Nations (I.C.J. Reports 1962, pp. 208,213).
(See also, by him, "Hersch Lauterpacht — The Scholar as Judge" — Part III,
British Year Book of International Law, 1963, Vol. 39, p. 154, footnote, and
his separate opinion in the Golder case, European Court of Human Rights,
judgment of 21 February 1975, Series A, Vol. 18, p. 32.)
However elastic may be the test to be applied in determining the existence
and extent of implied powers — and undue rigidity is surely to be avoided —
it seems in any event clear that a constituent instrument cannot be read as
implying the existence of powers which contradict the essential [p 42]
nature of the organization which it creates to exercise them. Powers of that
kind could not be described as "required" or "essential" (within the
meaning of the Reparation case) to enable the organization effectively to
discharge the functions laid upon it by its organic text.
As sought to be shown above, the basis on which the Court was created leaves
no room for doubt that, notwithstanding the limited extent to which the
appointment of ad hoc judges was permitted, the Court was intended to
function as a court of justice as generally understood. As I have had
occasion to opine in the case of the Applicability of Article VI, Section
22, of the Convention on the Privileges and Immunities of the United Nations
(I.CJ. Reports 1989, p. 213), the chief characteristic of a court of justice
is that it is invested with judicial power. In the normal case, some
external agency possessed of appropriate legislative competence over the
jurisdiction of a court of justice, or, failing that (as in this case), the
machinery competent to amend the constitution of the court, may well have
authority to modify the extent of the court's original endowment of judicial
power; but, however that may be, the court itself is powerless to alienate
any part of its grant. The definition of judicial power can be a matter of
difficulty, but it is reasonably clear that it includes not merely the power
to hear and determine, but also, where necessary, the power to decide what
particular members of the court shall hear and determine any particular
case. The latter is part of the process by which the Court determines how it
will exer-cise judicial power.
Absent any specific guidance in the literature of the Court, and the matter
being one of general jurisprudence, I turn to the approach taken at the
municipal level in Reg. v. Liyanage ((1963) 64 N.L.R. 313, at p. 359,
considered in Liyanage v. The Queen [1967] 1 A.C. 259, P.C.) in which the
Supreme Court of Ceylon struck down a law purporting to authorize a Minister
to designate three serving judges to try certain persons on particular
charges, the ground given by the Court being that the power to select judges
to hear particular cases was part of the inalienable judicial power of the
Court. The reasoning in that case is not applicable here in its entirety.
But it is in large part. It may be observed, in particular, that, mirroring
in principle the position in that case, throughout the history of the World
Court right up to the 1972 changes, the selection of serving judges of the
Court to be members of a chamber rested exclusively with the Court itself.
It is inconceivable that the Court would have regarded that right as
anything other than an integral part of its judicial power. It is useful
also to note certain references in the cited case to possible exclusion of
some judges from rightful participation in the exercise of the Court's
judicial power, the risk of undignified treatment of the head of the Court,
and, more pertinently, the possibility of judges being selected by a party
interested in the litigation. The case was, of course, decided at the
municipal level. But it seems to me that it would be rash to dismiss it
entirely on that account: except where clearly provided otherwise in the
Statute, it would [p 43] be a profitless, if not dangerous, affectation to
appeal to the international status of the International Court of Justice to
suggest that it occupies a materially different position in respect of
matters normally regarded as inconsistent with the basic concept of a court
of justice under municipal law.
The Ceylon case involved the municipal law concept of separation of powers,
and this, it has been held, is "not applicable to the relations among
international institutions for the settlement of disputes" (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 433).
But this dictum has no application to the question whether the Court itself
may allow such judicial power as has in fact been vested in it to be
exercised by persons other than itself. True, also, the Ceylon case
involved an outright designation of judges by an agency external to the
court, whereas the system under review only gives to the parties a say in
the designation, which remains ultimately with the Court itself, with the
right to decide differently if it wishes. But there is difficulty in
conceding that this should make any legal difference. A proper concern for
the preservation of the juridical wholeness of the Court does not suggest
that this is an area in which fascination with forms can be suffered to
prevail over regard for substance. As mentioned earlier, Judge Jimenez de
Arechaga, a principal architect of the new system, had said that the "main
change introduced... [was] to accord to the parties a decisive influence in
the composition of ad hoc Chambers" (Eduardo Jimenez de Arechaga, loc. cit.,
p. 2). No reason appears for thinking that this authoritative statement of
purpose differed from actual practice up to the time when the Chamber in
this case was established. Even if not "decisive", the influence accorded is
certainly substantial, for, as earlier observed, it could not be supposed
that the Court was being required to ascertain the views of the parties as
to the composition of a chamber while being entirely free to ignore them.
Whether "decisive" or "substantial", the influence so given to the parties
was, in my respectful opinion, an illicit conveyance of an essential part of
the Court's patrimony.
It is true that the secrecy requirement in elections of judges as members of
an ad hoc chamber continues to apply. But so also does a connected
requirement, no less compelling for being assumed, that such elections must
also be free. Arguments in opposition to the new system assert that it leads
to an infringement of the secrecy requirement in the sense that the result
is known in advance. Perhaps, in that sense, there is an infringement, even
though the formal procedures do remain secret. But a stronger argument would
seem to be that the new system violates a certain freedom of choice which
the secrecy provision was intended to insulate against [p 44] pressure and
extraneous influencesFN1 In an election of serving judges to be members of a
chamber, the voting judge is electing fellow members of a court of justice
to hear and determine a case at arm's length between contesting parties.
That is a purely domestic exercise of the Court, in relation to which the
views of the parties are at best irrelevant, at worst injurious. The
effective result of the system under review being to accord them a "decisive
influence", it is neither credible nor acceptable to aver that elections
made on that basis can realistically claim to represent a free exercise of
the will of the Court.
---------------------------------------------------------------------------------------------------------------------
FN1 For the general theory underlying an electoral secrecy provision, see
the Maple Valley Case (1926) 1 D.L.R. 808, at pp. 814-815; 29 Corpus Juris
Secundum, para. 201 (1), pp. 557-558; and Withers v. Board of Commissioners
of Harriett County (1929) 146 S.E. 225, at p.
226.
---------------------------------------------------------------------------------------------------------------------
This, in turn, is why it serves little purpose to seek to down-play the
status of the requirement for holding elections on the ground that the
requirement exists only under the Rules of Court and not under the Statute.
True enough. But what does exist under the Statute is an assumption that the
selection, however made by the Court, of those of its Members who are to
serve as members of a chamber would represent a free and genuine exercise of
the will of the Court. It was perfectly proper for the Rules to seek to
ensure this important result by enveloping the procedure within the
protective framework of an election by secret ballot.
In the case of the Constitution of the Maritime Safety Committee of the
Inter-Governmental Maritime Consultative Organization, construing the word
"elected" as it appeared in Article 28 (a) of the Convention for the
Establishment of the Inter-Governmental Maritime Consultative Organisation,
the Court said:
"The meaning of the word 'elected' in the Article cannot be determined in
isolation by recourse to its usual or common meaning and attaching that
meaning to the word where used in the Article. The word obtains its meaning
from the context in which it is used. If the context requires a meaning
which connotes a wide choice, it must be construed accordingly, just as it
must be given a restrictive meaning if the context in which it is used so
requires." (I.C.J. Reports I960, p. 158.)
The context of that case favoured a restrictive meaning. In this case, the
Rules of Court are to be construed in the light of the Statute, and both
must of course be viewed in the light of the Charter, of which the Statute
indeed forms part. It is in this way that the context is to be ascertained
for the word "election", as it appears in Article 17, paragraph 3, of the
Rules of Court, and more particularly as it is linked with the words "by
secret ballot" appearing in Article 18, paragraph 1, of the Rules. Thus
considered, there is nothing in the context which can so validly constrain
the freedom normally associated with the concept of an election by secret
ballot as to afford the parties any influence over the result, whether
"deci-[p 45] sive" or not. On the contrary, everything in the context
prohibits the introduction of any such influence into the process. With
that prohibition, fixed as it is by the very nature of the Court as
established by the Charter and the Statute, it is vain to seek to interfere
by an exercise of the subordinate and limited rule-making power of the
Court. The regular judges of the Court, it must be remembered, are elected
by the General Assembly and the Security Council, the possible involvement
of the Court in that process being merely contingent under Article 12,
paragraph 3, of the Statute.
Article 2 of the Statute requires judges of the Court to be "independent".
The importance of that quality for the Court as a whole has been rightly
stressed in the literature (see Conditions of Admission of a State to
Membership in the United Nations (Article 4 of the Charter), I.CJ. Reports
1947-1948, p. 95, per Judge Zoricic; and Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco, I.CJ. Reports 1956,
p. 104, per Judge Winiarski). It is not easy to think of any concept of
judicial independence which is consonant with particular judges being named
to sit in a particular case practically at the behest of the parties.
Referring to the term "court" in Article 5, paragraph 4, of the European
Convention on Human Rights, the European Court of Human Rights observed that
"[t]his term implies only that the authority called upon to decide ... must
possess a judicial character, that is to say be independent both of the
executive and of the parties to the case" (see European Court of Human
Rights, the Neumeister case, judgment of 27 June 1968, Series A, p. 44,
para. 24; emphasis added).
I cannot think of any reason excluding the substance of this view in the
case of an international court.
Do the new arrangements place the independence of the Court at risk? To take
one example, in selecting judges as members of a chamber it would, I think,
be extraneous and legally impermissible for the Court itself (by which as a
whole the selection is ultimately made when forming the chamber under
Article 26, paragraph 2, of the Statute) to be guided by a criterion as to
the extent to which its jurisdiction is accepted by countries from which
particular judges come. No such test is visualized by the Statute, which
does not regard a judge as representing his country or his nationality as
relevant to his independence (see Certain Norwegian Loans, I.CJ. Reports
1957, p. 45, per Judge Lauterpacht, and Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
I.CJ. Reports 1986, pp. 158-160, per Judge Lachs, and p. 528, per Judge
Jennings). Yet it would seem that the new system is structured in a way
which enables litigating parties, if they wish, to exclude judges from an ad
hoc chamber on the basis of precisely that criterion or criteria similar to
it (see Judge Petren, loc. cit., pp. 61 -62; and Mr. John R. Stevenson, in
American Society of International Law, Proceedings of the 80th Annual [p 46]
Meeting, 1986, p. 202). If, as I think, the Court itself cannot take such
considerations into account when electing judges to be members of an ad hoc
chamber, can it, by Rules, authorize a procedure which enables such
considerations to be indirectly taken by it into account through reception
of the views of the parties ? That the Court may not in fact be aware of the
motivation of the parties does not diminish the risk: on the contrary, it
makes the risk even more palpable.
Similar observations apply in relation to Mr. Edvard Hambro's arresting
observation to the effect that the new consultation procedure
"means also in fact although not in law that the rules concerning
imcompatibilities of judges have been changed since it may safely be assumed
that the parties will scrutinize the background of the judges very carefully
and exclude any person who may be considered as 'unfriendly' on account of
previous dealings with the same or similar problems, even though such
dealings would not be considered by himself, the President or the Court to
be of such a character that he would be excluded from sitting in the case"
(Edvard Hambro, loc. cit., p. 368).
The grounds of incompatibility are prescribed by Articles 16 and 17 of the
Statute itself. Can an amendment to the Rules of Court effectively empower
the parties to add to those grounds in the exercise of a practically
unreviewable discretion? I cannot think so. And yet that, indeed, is what
the new Rules would enable the parties to do.
Arguments in favour of the new system place some reliance on the
inapplicability to chambers of Article 9 of the Statute — a provision which
relates to the globally representative composition of the Court, in the
sense that it was visualized that in the Court "as a whole the
representation of the main forms of civilization and of the principal legal
systems of the world should be assured". Under Articles 26 and 27 of the
1920 Statute, judges of the labour chamber and of the transit and
communications chamber were to be "selected so far as possible with due
regard to the provisions of Article 9". The fact that those chambers
consisted of five members each, whereas the Chamber of Summary Procedure
consisted of only three members until this was increased to five in 1936,
probably accounts, at least in part (accessibility to The Hague might have
been another factor), for the origins of the omission of a reference to
Article 9 in Article 29 of the 1920 Statute relating to the Chamber of
Summary Procedure, it being obvious that a three-member chamber could not
possibly hope to achieve anything reasonably approximating to global
representativeness. Possibly it was an extension of this reasoning which
ultimately led in 1945 to the complete omission from the chambers provisions
of the [p 47] present Statute of any reference to Article 9. But, whatever
the reason, it would not appear that this omission could in any way support
an argument in favour of the legality of the new system (cf. Eduardo
Jimenez de Arechaga, loc. cit., pp. 2-3). What is in issue is freedom of
choice by the Court in relation to the will of the parties, not the question
whether the exercise of that choice should or should not conform to Article
9.
If in fact that freedom of choice is materially impaired under the new
system, a question which will arise is this: granted that a chamber need not
be representative of the global distribution of civilizations and legal
systems, must it not at any rate represent the result of a truly free
exercise of the will of the Court itself in order to be able to pass as a
credible manifestation of the Court in its capacity as "the principal
judicial organ of the United Nations" within the meaning of Article 92 of
the Charter? Can a chamber, whose members have each been practically
hand-picked by the litigants themselves, pass as the "principal judicial
organ of the United Nations" ? Was this what the framers of the Charter
intended when they so characterized the Court? More particularly, was that
the kind of chamber they had in mind when they accepted in Article 27 of the
Statute that a "judgment given by any of the chambers provided for in
Articles 26 and 29 shall be considered as rendered by the Court" and should
accordingly be enforceable by recourse to the Security Council under Article
94 of the Charter? One may be permitted to doubt it.
I appreciate the argument that, in view of the existence of the Chamber of
Summary Procedure, there could have been little point in providing for ad
hoc chambers in 1945 unless it was intended that the parties should have
some say in their composition. My difficulty is that, if this was the
intention, it is not to be found in the text of the Statute, and the
fundamental character of the Court does not suggest that it can be implied.
Further, the assumption of unnecessary duplication in the absence of such an
intention may not be well grounded, for it does not seem safe to suppose
that it was contemplated that an ad hoc chamber would always be of the same
size as the Chamber of Summary Procedure, or that it would necessarily be
dealing with the same type of cases which might have been thought
appropriate for determination by the Chamber of Summary Procedure. Some of
the cases which have gone to ad hoc chambers could hardly have lent
themselves to treatment by a chamber of summary procedure which was
intended for "the speedy dispatch of business" as expressly visualized by
Article 29 of the Statute.
To sum up, the field of operation of the rule-making power of the Court, as
defined by Article 30 of the Statute, is wide but not unlimited. The Court,
it may be said, has a certain autonomy in the exercise of its rule-making
competence; but autonomy is not omnipotence, and that competence is not
unbounded. Rules of Court could only be made in exercise of powers granted
by the Statute, whether expressly or impliedly. The Statute did not
expressly grant power to the Court to confer by Rules a [p 48] right on the
parties to have their views taken into account in the selection of serving
judges to be members of an ad hoc chamber. Nor was any such power granted by
the Statute impliedly: however generous may be the principle regulating the
ascertainment of the extent of the Court's implied powers, such powers
encounter an ultimate limit when they collide with the intrinsic nature of
the Court itself. For the reasons given, the selection, whenever necessary,
of serving judges to sit in any particular case is an integral part of the
inalienable judicial power confided to the Court by the world community. The
Court cannot, directly or indirectly, convey away that power in whole or in
part, or share it with others, without destroying its essential character as
a court of justice. A Rule of Court which purports to do so is contrary to
the Statute. In the words of Judge Fitzmaurice, dissenting:
"The Court has no power to make Rules that conflict with its Statute :
hence any rule that did so conflict would be pro tanto invalid, and the
Statute would prevail." (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 310.)
Judge Mbaye spoke to similar effect in the case concerning the Continental
Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to
Intervene {I.CJ. Reports 1984, p. 44). And a Rule of Court which is ultra
vires the Statute is also ultra vires the Charter, first, because Article 92
of the Charter expressly declares that the Statute "forms an integral part
of the present Charter", and, second, because the same Article of the
Charter expressly requires the Court to "function in accordance with the
annexed Statute". In the result, as Judge Lauterpacht said in his dissenting
opinion in the Interhandel case:
"the Court, as shown by its practice and as indicated by compelling legal
principle, cannot act otherwise than in accordance with its Statute, of
which it is the guardian" (I.CJ. Reports 1959, p. 104. See, also by him, in
Certain Norwegian Loans, I.CJ. Reports 1957, p. 45.)
The foregoing considerations suggest that the requirement in Article 17,
paragraph 2, of the Rules of Court 1978 for the President to ascertain the
views of the parties regarding the "composition" of an ad hoc chamber should
be construed harmoniously with the Statute, and that, when so construed, it
is restricted to ascertainment of the views of the parties as to the
"number" of members of the chamber. Failing that construction — a
construction which does not correspond either with the general
understanding of the provision or with the actual practice under it — it
would seem that Article 17, paragraph 2, of the Rules is pro tanto ultra
vires the Statute. For, as was observed by Judge Hackworth in his dissenting
opin-[p 49] ion in the case of the Effect of Awards of Compensation Made by
the United Nations Administrative Tribunal:
"The duty of a court when faced with apparent incompatibility between a
legislative enactment and the constitution (the Charter) is to try to
reconcile the two. If this cannot be done the constitution must prevail."
(I.C.J. Reports 1954, p. 83.)
Part IV. Judicial Tenure
The far-reaching implications of the new system now bring me to the question
of judicial tenure, a matter alluded to in the letter from the Agent for
Nicaragua to the Registrar of 1 February 1990. The question concerns an
associated amendment as a result of which Article 17, paragraph 4, of the
Rules of Court reads:
"Members of a Chamber formed under this Article who have been replaced, in
accordance with Article 13 of the Statute following the expiration of their
terms of office, shall continue to sit in all phases of the case, whatever
the stage it has then reached."
This applies even though no pleadings have been filed; it is enough that a
bare application originating the proceedings has been. A fortiori, it is not
necessary that the oral proceedings or any collegiate study of the case
should have commenced. So, as happened in the GulfofMaine case (I.C.J.
Reports 1982, p. 3), a judge may be elected to a chamber just weeks before
he is due to be replaced, with the result that it is the timing of the
election and not the state of work that really dictates the need for an
extension. By contrast, Article 13, paragraph 3, of the Statute, referred to
in that rale, itself provides that Members of the Court replaced at an
election "shall finish any cases which they may have begun". Adverting to
this, Article 33 of the Rules stipulates that, save as provided in Article
17 above, Members of the Court who have been replaced in accordance with
Article 13, paragraph 3, of the Statute shall continue to sit "until the
completion of any phase of a case in respect of which the Court convenes for
the oral pro-ceedings prior to the date of such replacement". Leaving aside
arguments relating to the restrictive reference to "any phase", under this
provision there can be no extension unless the oral proceedings had
commenced before the normal date of retirement.
It is thus obvious that an outgoing judge elected as a member of an ad hoc
chamber before the expiry of his normal term can continue to sit in
circumstances in which an outgoing judge not so elected cannot. Can a Rule
of Court competently create such a discrepancy?[p 50]
It seems elementary that the right to continue to sit notwithstanding
replacement is a substantive matter concerning the constitution of the Court
and is accordingly controlled by the Statute itself. The Statute visualized
only one case of extension and that was where, as provided in Article 13,
paragraph 3, the judge had "begun" a case. A judge is not normally regarded
as having "begun" a case until he has commenced the oral proceedingsFN1. In
the case of the International Court of Justice, a possibly wider formula has
been given by Rosenne, as follows:
---------------------------------------------------------------------------------------------------------------------
FN1
Consider, for example, the general understanding reflected in the statements
made by M. Raested, in League of Nations, Committee of Jurists on the
Statute of the Permanent Court of International Justice, Minutes of the
Session Held at Geneva, March 11th-19th, 1929, p. 42. And see R. v. Craske,
ex parte Metropolitan Police Commissioner[1951] 2 Q.B. 591, and Sookoov.
Attorney General of Trinidad and Tobago(1985) 33 W.I.R. 338, at p. 360 j,
and, on appeal, [1986] 1 A.C. 63, P.C.
---------------------------------------------------------------------------------------------------------------------
"the point of time to which the verb 'begin' or its derivatives refers in
provisions such as Article 13, paragraph 3, of the Statute and Articles 13,
paragraph 2, and 27, paragraph 5, of the [1972] Rules of Court is the moment
when the Court commences its collective deliberations, technically called
the 'hearing'. Even when grammatically the verb describes action by an
individual judge, juridically its implication is a general and collective
study of the case by the judges together in person, and not the personal
study of the file by a judge individually, to all of whom, of course, the
dossier is formally transmitted by the Registrar under Article 48 of the
Rules." (S. Rosenne, "The Composition of the Court", in Leo Gross (ed.),
The Future of the International Court of Justice, 1976, Vol. 1, pp.
397-398.)
Different judges do, of course, begin to study a case file at different
times. Hence, as Rosenne explains, even the wider view proposed by him would
be restricted to a collegiate exercise. By contrast, Article 17, paragraph
4, of the existing Rules extends the right to sit whether or not any
collegiate exercise has commenced.
The attempt made to vary the position as laid down by the Statute was not
surprisingly based on the parallel attempt made to grant to the parties
practical control over the selection of Members of the Court to be members
of an ad hoc chamber. Judge Jimenez de Arechaga put it this way:
"The consideration that dictated a different solution for ad hoc Chambers is
that in this type of Chamber continued participation in the case should not
depend on remaining a Member of the Court itself. Otherwise, a Chamber set
up at the request of, and taking into account the wishes of the parties
might lose some of its members [p 51merely by the passage of time." (Jimenez
de Arechaga, loc. tit., p. 4.)
In effect, so the argument seemed to run, since a judge owed his membership
of such a chamber to the wishes of the parties, those wishes ought not to be
frustrated by the expiry of his regular term. With much respect, this does
not seem to be a safe mode of proceeding. Even if there is room for argument
as to what is meant by the reference to "cases which they may have begun" in
the governing provisions of Article 13, paragraph 3, of the Statute, it is
not admissible to assign to that phrase one meaning in relation to cases
heard before the full Court and another in relation to cases heard before a
chamber. The form assumed by the Court in hearing a case has nothing to do
with the question whether a case has been "begun" by a judge or not. The
Court being in legal theory the same whether sitting en bane or in chamber,
the question whether a judge has "begun" a case must be answered in the same
way regardless of whether it is being heard before the one or the other.
Whatever may be the meaning of the word "begun" as it appears in the Court's
constituent text, that meaning can only be one and singular in relation to
all judges. Different meanings may be given to the same word appearing in
different places of an instrument or indeed in different places in the same
provision of an instrument, but hardly to one and the same word appearing in
a particular place in a particular provision, and certainly not where the
meanings would be contradictory, as in this caseFN1.
---------------------------------------------------------------------------------------------------------------------
FN1 Cf. the interesting but doubtful cases of Forth v. Chapman, 1 P. Wms.
663, involving different interpretations of the same expression by different
court systems, and Bonesv. Booth (1778) 2 W. Bl. 1226, involving a
difference between penal and non-penal application of a given expression.
Both were mentioned in Maxwell on the Interpretation of Statutes, 6th ed.,
pp. 558-560, but have disappeared from more recent editions. The case of a
single generic expression comprehending several species is of course a
different one.
---------------------------------------------------------------------------------------------------------------------
The resulting situation has an important bearing on the question whether an
ad hoc chamber formed under the new arrangements may be regarded as a
legitimate manifestation of the Court. The problem of what to do with
judicial business remaining unfinished at a prescribed retirement date
arises in many jurisdictions. There are several ways of dealing with it,
other than to order a rehearing. As it has been aptly put in one
jurisdiction where the question arose and had to be answered, two solutions
are theoretically possible:
"One of these [is] to allow the termination to take effect and merely permit
the holder of the office, now a former judge, to sit as a judge[p 52] for
the purpose of completing the incomplete matters... The other [is] to
postpone the vacating of the office of the judge for a period to be
determined as necessary for the completion of the pending court matters and
permit a judge to continue to hold his office with his powers undiminished."
(Sookoo v. Attorney General of Trinidad and Tobago (1985) 33 W.I.R. 338,
Trinidad and Tobago Court of Appeal, at p. 361, per Warner J.A., and, on
appeal, [1986] 1 A.C. 63, P.C., at p. 71.)
It seems clear that it was the first of these two theoretical solutions
which was employed in Article 13, paragraph 3, of the Statute, with the
result that a judge who, "though replaced", is functioning by virtue of this
provision, exercises the functions but does not hold the office of a judge.
He cannot hold the office any longer because he has been "replaced" as one
of the fifteen judges of the Court by another person who has been duly
admitted to fill the same office. Now, if the Rules under consideration are
valid, the entire oral proceedings of a case before an ad hoc chamber may
take place before persons none of whom held the office of a Member of the
Court at any time during that hearing. So, once again, is this the kind of
chamber that the framers of the Statute had in mind when they accepted in
Article 27 that a "judgment given by any of the chambers provided for in
Articles 26 and 29 shall be considered as rendered by the Court"?
Part V. Power of Court to Reverse Its Previous Decisions
I come now to the question whether, if the foregoing is right, what, if
anything, can be done to correct the position. In the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area,
Constitution of Chamber, the Order of Court recited that the parties had
been duly consulted "as to the composition of the proposed Chamber of the
Court in accordance with Article 26, paragraph 2, of the Statute and Article
17, paragraph 2, of the Rules of Court" (I.C.J. Reports 1982, p. 4). With
occasional variations, similar affirmations were later made in the case
concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
Constitution of Chamber (I.C.J. Reports 1985, p. 7); the case concerning
Elettronica Simla S.p.A. (ELSI), Constitution of Chamber (I.C.J. Reports
1987, p. 4); the case concerning Elettronica Sicula S.p.A. (ELSI),
Composition of Chamber (I.C.J. Reports 1988, pp. 158-159); and the case
concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras) (I. C.J. Reports 1987, p. 12). The Court has therefore
taken a position, even though not reasoned, on the question whether the
existing practice is in accordance with the Statute. But does this preclude
the matter from being re-opened?
Before a practice is held to be inconsistent with a controlling provision of
the Statute or of the Rules of Court, to which it must yield if in conflict,
[p 53] the meaning of the provision must first be established. What is
evidenced by the cases referred to is not a simple accidentally developed
practice, but a practice resting on decisions of the Court which manifest
its interpretation of the applicable provisions of those instruments. To
what extent would it be proper for the Court at this stage to reverse its
previous decisions as to the meaning of those provisions ? This seems to be
the question here, as I believe it similarly was in the case concerning the
Aerial Incident of3 July 1988 (Islamic Republic of Iran v. United States of
America) (I.C.J. Reports 1989, p. 145). The answer may, I think, be derived
from the position put forward by Sir Hersch Lauterpacht as follows:
"Subject to the overriding principle of resjudicata, the Court is free at
any time to reconsider the substance of the law as embodied in a previous
decision ... it will not do so lightly and without good reason. But it may
do so, and it has done so." (Sir Hersch Lauterpacht, The Development of
International Law by the International Court, 1958, p. 19. See also ibid.,
p. 20.)
That the Court should not act lightly and without good reason suggests to my
mind that the mere fact that the Court in a later case may be disposed to
see the law differently from the way in which it saw it in an earlier case
may not always suffice to warrant a reversal of its previous holding on the
same point. But I do not think the Court will be acting lightly and without
good reason if it were to reverse a previous decision on the law on the
ground that it was clearly erroneous as well as productive of grave
consequences for the judicial integrity of the Court of which the Court
itself is the avowed guardian. In this case, expectations based on the
continuance of the system sanctioned by the previous decisions of the Court
cannot outweigh the gravity of the consequences of those decisions for the
essential nature and structure of the Court. I believe that the applicable
criteria are satisfied in this case to the point of unmistakably requiring
the Court to reverse its previous decisions and to redirect the law along
its proper course. Reasonable development of the law, even if sometimes
bold, is natural and legitimate; mere expansiveness is another matter.
Part VI. Conclusion as to the Validity of the Existing Arrangements Relating
to Ad Hoc Chambers
The issue, summarized, is this: The fundamental character of the Court
remains what it was conceived to be by the founders of the Permanent Court.
That character was deliberately judicial and was not materially altered by
the introduction in 1945 of the institution of the ad hoc chamber. Up to
1972, the determination of which particular Members of the Court should sit
on a chamber was exclusively a matter for the Court itself. Was it legally
competent for the Court, by an exercise of its subordinate and [p 54]
limited rule-making power, to bargain away a substantial, if not decisive,
part of this faculty of choice to potential litigants in exchange for the
prospect of greater use of ad hoc chambers ? Was the fundamental judicial
character of the Court consistent with giving the parties a share in the
exercise of its power to select its regular personnel to sit in a particular
case? Even in cases of negative selection by exclusion for cause, though
something in the nature of a right of recusation in fact exists, the Statute
cautiously refrained from explicitly conferring such a right on the parties
(see Proces-Verbaux, 1920, op. cit., p. 472, per Lord Phillimore; P.C.I.J.,
Series D, No. 2, p. 72, perLord Finlay; Stauffenberg, op. cit., p. 76;
Hudson, The Permanent Court of International Justice, 1943, pp. 173
and370;Louis Favoreu, "Recusation et administration de la preuve devant la
Cour inter-nationale de Justice", Annuaire francais de droit international,
1965, Vol. XI, pp. 236 ff.; and Genevieve Guyomar, Commentaire du Reglement
de la Cour internationale de Justice: Interpretation et pratique, Paris,
1983, pp. 195-197). Did it authorize the Court by Rules of Court to give
them a right of positive selection? I do not think so.
The question then is which shall prevail — the practical utility of a
privately selected chamber claiming to be a legitimate manifestation of the
Court, or the grand original design of the Court as a court of justice
serving an integrated world and seen by that world to be serving it as such
a court? While it cannot be inadmissible today to recall the great vision
which animated yesterday's creators of a judicial edifice of whose
integrity the Court is the proud guardian, defenders of the new system may
well call in aid Judge Lauterpacht's statement reading:
"A proper interpretation of a constitutional instrument must take into
account not only the formal letter of the original instrument, but also its
operation in actual practice and in the light of the revealed tendencies in
the life of the Organization." (Voting Procedure on Questions relating to
Reports and Petitions concerning the Territory of South West Africa, I.C.J.
Reports 1955, p. 106.)
Even so attractively designed an invitation to constitutional creativity may
not however settle doubts as to whether the law-making powers of the Court
can ever properly extend to enable it by an act of levitation to shift the
ground on which it has been standing. It was Judge Lauterpacht himself who
noted "the principle that an organ cannot act except in accordance with its
constituent instrument" (Certain Norwegian Loans, I.C.J. Reports 1957, p.
45). If this principle has indeed been breached in this case, to sustain the
new arrangements relating to ad hoc chambers would not only violate the
Court's own declaration that its duty is "to interpret..., not to revise"
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second
Phase, I.C.J. Reports 1950, p. 229); it would go beyond that to bring into
play the more ominous words used by the Permanent [p 55] Court of
International Justice when it took the position that to uphold a certain
interpretation "would be, not to construe but to destroy ..." (Serbian
Loans, P.C.I.J., Series A, No. 20/21, p. 32). It seems to me that what would
be destroyed here would be a concept of fundamental importance to the
institutional integrity of the Court as it was conceived to be. This is the
problem lying at the root of this whole case, as brought to a head by the
present procedural difficulties.
In sum then, I agree with Nicaragua that to
"consider that a challenge to the formation of the Chamber ... should be
aired before the same Chamber would certainly be a complete surrender of the
sovereign will of the intervening party to the will of the original parties
as reflected in the formation of the Chamber" (letter to the Registrar from
the Agent for Nicaragua of 1 February 1990).
But what are the true implications of the extent to which "the will of the
original parties [is] reflected in the formation of the Chamber" ? In my
opinion, reached with reluctance but with conviction, the methods by which
the members of the Chamber have been selected do not satisfy the criteria
required to enable it to discharge the judicial mission of the
International Court of Justice, considered as a court of justice, in
relation to the Applicant; and the fundamental reason for this is that the
Chamber has been constituted not in accordance with the Statute, but in
accordance with an unauthorized arrangement under which the Court has been
essaying to transform itself into the Permanent Court of Arbitration, or
something akin to it. This represents a major flaw which the Court, as the
avowed guardian of its own judicial integrity, cannot correctly overlook.
The existing practice may well continue unabated. My views may make no
difference. It was nevertheless my duty to state them.
Part VII. The Nicaraguan Application Considered on the Assumption of the
Legality of the Existing Arrangements
Assuming that I am wrong in the foregoing, how should the Nicaraguan
Application be determined? It seems to me that, even if the original
constitution of the Chamber was valid in relation to the existing Parties,
the capacity of the Chamber to act judicially, as it stands, in relation to
Nicaragua would still be seriously in issue.
In its Application, as pointed out in the Order made by the Court, Nicaragua
emphasized that its "request for permission to intervene... is a matter
exclusively within the procedural mandate of the full Court". The word
"exclusively" seems reasonably to convey that Nicaragua does not
[p 56] wish its Application to be considered by the Chamber. Developing
this, in his letter to the Registrar of 1 February 1990, the Agent for
Nicaragua stated the following:
"One of the main changes introduced in the 1972 Rules of Court was in
relation to the composition of ad hoc Chambers. As former Registrar Hambro
said, the changes in the Rules
'means that the parties are free to make known exactly which individual
judges they desire on the Bench for that case''.FN1
------------------------------------------------------------------------------------------------------------
FN1 Edvard Hambro, 'Will the Revised Rules of Court Lead to Greater
Willingness on the Part of Prospective Clients?', in Leo Gross (ed.), The
Future of the International Court of Justice, 1976, p. 368."
-----------------------------------------------------------------------------------------------------------
In effect, Article 26, paragraph 1, of these Rules indicates that the
President of the Court 'shall consult the agents of the parties regarding
the composition of the Chamber'.
The role of the parties in organizing the ad hoc Chamber is further
emphasized by the fact of the continuation of a member of an ad hoc Chamber
beyond his term of office.
To consider that a challenge to the formation of the Chamber, made because
of the extent of the competence ratione materiae with which it was anointed,
should be aired before the same Chamber, would certainly be a complete
surrender of the sovereign will of the intervening party, to the will of the
original parties as reflected in the formation of the Chamber.
………………………………………………………………………………………………
This principle [of the equality of States] which demands respect of the
sovereign equality of Nicaragua would be inevitably affected if it were
decided that the only intervention possible was before the ad hoc Chamber.
Hence, Nicaragua can only appear before the full Court if this principle is
to be respected.
Clearly, Nicaragua's primary concern is with the extent to which the
formation of the Chamber reflected the will of the existing Parties. It does
not wish to go to the Chamber as it stands, whether for the purpose of
seeking permission to intervene or for the purpose of seeking a reformation
of the Chamber. The situation so presented may be considered, first, at the
level of general principles, and then at the level of particular procedural
rules.
Viewing the matter at the level of general principles, I think it is first
necessary to consider the relationship between the full Court and a chamber
of any kind. No doubt, unless a chamber is indicated by the context, a
reference in the Statute to the "Court" is a reference to the full Court,
and evidently there are differences between these two bodies, but these
differ[p 57]ences are those between related and not mutually alien
entities. In principle, the same Court is acting whether it acts through
the full Court or through a duly established chamber. The first chamber
judgment, given in 1924, began with the carefully chosen words, "The Court,
sitting as a Chamber of Summary Procedure ...", and ended with a dispositif
beginning significantly with the words, "For these reasons the Court decides
..." (Treaty of Neuilly, P.C.I.J., Series A, No. 3, pp. 4 and 9
respectively). By Article 1 of the relevant Special Agreement, the case had
been correspondingly submitted by the parties "to the Permanent Court of
International Justice, in its Chamber for summary procedure . . ."
(P.C.I.J., Series C, No. 6, p. 9). In effect, the functions of a chamber are
as much the functions of the "Court" as are those of the full body. Thus,
however desirable it may be for a chamber to be left to discharge its actual
functions as autonomously as possible, the relationship between it and the
full Court is not one between strangers. Nicaragua has drawn attention to
significant instances of action taken by the full Court in relation to a
chamber even after the latter has been established. The full Court, having
set up a chamber, cannot interfere in its actual work; but I think it
retains a continuing responsibility to ensure that the composition of the
chamber is such as to enable it to function with a sufficient degree of
procedural rectitude in order to qualify it as a convincing manifestation
of the Court as a court of justice. If I mistake not, something of this view
is implicit in the reference in the Court's Order to its "power to form a
chamber to deal with a particular case, and consequently to regulate matters
concerning its composition".
Under the system as it has so far worked, an ad hoc chamber, being composed
of judges whose selection has been substantially influenced, if not
determined, by the original parties (a proposition which cannot credibly be
controverted), cannot function as a normal court of justice either in
relation to an application for permission to intervene or, if the
application is granted, in relation to the applicant as an intervening party
to the case on the merits. A request for permission to intervene cannot but
be coupled, as in this case, with a request for an appropriate reformation
of the chamber. Ex hypothesi, the latter is beyond the competence of the
chamber, which is thus incapable of dealing with either branch of the
application.
It may well be that the original parties and the applicant (if successful)
may never agree on matters essential to the reformation of the chamber, such
as the number of members. In that event, the proceedings are halted; but,
unfortunate as this may be, it is, in my opinion, a lesser thing than that
the proceedings should be conducted at variance with fundamental norms
applicable to a court of justice, as distinguished from an arbitral
tribunal.
I accept as elementary that in principle it is the tribunal with compe-[p
58] tence over the merits which should also determine incidental
proceedings, including applications for permission to intervene. But another
elementary rule is that in applying a rule — especially an elementary rule
— it is important to take account of the particular circumstances. Subject
to this, I think I can agree with the submission of Honduras that —
"the correct principle is ... that any Court or Tribunal, with competence
over the merits of the case, must (within the limits of its Statute) be free
to decide upon the procedures appropriate to the case, and such decision has
to be taken in the light of the actual issues of substance raised in the
case, not as an abstract matter" (letter to the Registrar from the Agent for
Honduras of 15 January 1990).
That, no doubt, represents the norm. However, the present case represents
anything but the norm. Having regard to the methods by which the Chamber
was formed, it is difficult to appreciate how the Applicant can with any
show of justice be left with no option but to go to that body. I see no
convincing answer to Nicaragua's submission that to require it to submit to
such a forum would involve "a complete surrender" of its will "to the will
of the original parties as reflected in the formation of the Chamber" and a
resulting breach of the principle of equality of States. In this respect,
the position here seems materially and qualitatively different from that in
the case of the Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
Application to Intervene, Judgment{I. C.J. Reports 1981, p. 6) in which it
was held that a State applying to the full Court for permission to intervene
had no right to appoint an ad hoc judge to that Court for the purpose of
hearing the application, even though the Court included ad hoc judges
appointed by the existing parties in the ordinary way. In my opinion, such
is the distance between the circumstances of that case and those of the
present case (in which the selection of all the members of a five-member
chamber was substantially, if not decisively, influenced or determined by
the existing Parties) as to leave no juridically defensible alternative to
the Application in this case having of necessity to be heard by the full
Court.
The Court has cited the Haya de la Torre principle to the effect that "every
intervention is incidental to the proceedings in a case" (I.C.J. Reports
1951, p. 76). In that case (decided under Article 63 of the Statute), the
question was whether the purported intervention "actually relate[d] to the
subject-matter of the pending proceedings" (ibid.). That is not the question
here. While I accept that the principle would ordinarily mean that an
application for permission to intervene under Article 62 of the Statute
should be made to the tribunal dealing with the merits of the matter, this
presupposes that the tribunal is one which can act judicially in relation
to the application. That case was not concerned with the kind of issues
arising here as to what should be done to give real effect to the [p 59]
applicant's right to apply where the tribunal, which should ordinarily act,
does not satisfy the generally recognized criteria applicable to a court of
justice in so far as the applicant at any rate is concerned. In particular,
that case did not involve the concomitant application of the principle of
equality of States which would ineluctably be breached if Nicaragua's only
remedy was to go before a chamber composed of members selected as mentioned
above. It is difficult to justify this course by reference to the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, without a
considerable and unpersuasive extension of the latter.
If, for the reasons given by me, the Chamber cannot entertain the
Application, and if, for the reasons given by the Court, the Court cannot,
it would follow that there is no effective right to apply for permission to
intervene in a matter pending before an ad hoc chamber. But I see little
justification for holding that the right conferred by Article 62 of the
Statute to make such an application can be denied by simply bringing a case
before such a chamber rather than before the full Court. A system which
turns away a State as a stranger at the gate even if it can prove that "it
has an interest of a legal nature which may be affected by the decision in
the case" has little claim in modern times to speak in the name of a court
of justice, whatever other style it may affect and whatever might have been
the earlier position in international adjudication. However, if there is a
right to apply for permission to intervene, it must be a real right capable
of being asserted and vindicated by normal judicial process.
It is true that under Article 59 of the Statute the decision of the chamber
is not binding on a non-party. That, however, does not diminish the import
of the fact that Article 62, paragraph 1, of the same Statute gives a
non-party a right in law to request permission to intervene if "it has an
interest of a legal nature which may be affected by the decision in the
case", whether the requested permission is ultimately granted or not being
another matter (see Sir Gerald Fitzmaurice, The Law and Procedure of the
International Court of Justice, 1986, Vol. 2, p. 552; and Shigeru Oda,
"Intervention in the International Court of Justice", in Festschrift fur
Hermann Mosler, 1983, pp. 645-647). A State does not have to exercise that
right; but, if it elects to do so, it is entitled to have its application
determined judicially by a court of justice. I fail to see how this can
happen where the selection of the members of the deciding tribunal was
influenced, if not in substance determined, by the existing parties.
Viewing the matter now at the level of the procedural rules, it is to be
observed that, in the absence of any provision in the Statute or the Rules
dealing specifically with applications for permission to intervene in a
chamber case, and leaving aside general principles, the argument against
Nicaragua is based largely on the circumstance that Article 90 of the Rules
of Court applies in relation to chambers the provisions of Articles 81, 83,
84 and 85 of the Rules (see the second recital of the Order of Court). These
[p 60] provisions lay down rules of procedure for carrying out the functions
of the Court under Article 62, paragraph 1, of the Statute concerning the
right to apply for permission to intervene.
Although the rule-making provisions of Article 30, paragraph 1, of the
Statute speak only of the "Court" framing "rules for carrying out its
functions", it being the case that the functions of a chamber are the
functions of the Court, it was fully competent for the Court acting under
that provision to make rules of procedure relating to chambers also. I will
assume, without deciding, that the combined effect of Articles 81, 83,84,
85 and 90 of the Rules of Court is to regulate proceedings relating to
applications for permission to intervene in chamber matters on the basis
that such applications are to be made to the chamber concerned. But, in
thus providing for such applications to be made to the chamber concerned,
the Rules contemplated a chamber so constituted as to be capable of
functioning as a court of justice in relation to the applicant. For the
reasons given, the Chamber in this case cannot be considered as a normal
court of justice in relation to the Applicant. In my opinion, the Rules do
not and cannot require such an applicant to submit to such a chamber.
To what forum should the Applicant then turn? On the safe assumption that
Article 62 of the Statute gives the Applicant a real right to apply for
permission to intervene, the common sense view would be that the Applicant
must of necessity apply to the full Court. This common sense view accords
with the legal situation. As has been noticed, the Rules of Court are made
under Article 30, paragraph 1, of the Statute which authorizes the Court to
"frame rules for carrying out its functions". It is the function of the
International Court of Justice to administer justice, not injustice; and,
correspondingly, judges who make Rules of Court are to be credited with the
intention of enabling the Court to do justice, not injustice. Hence, a Rule
of Court should not be construed or applied as being legally effectual to
create injustice, such as that which I fear would be created by construing
the existing Rules as requiring Nicaragua to submit its Application to the
existing Chamber notwithstanding the methods by which it was constituted.
Since, in my view, the Rules do not effectively provide for the case, the
competence to deal with an application for permission to intervene in such a
case falls to be considered as remaining with the full Court in keeping
with the wording of Article 62 of the Statute. Under paragraph 1 of this,
the request for permission to intervene is to be made to the "Court". Under
paragraph 2, the decision is made by the "Court". Article 3 of the Statute
makes it clear that references to the "Court" are references to the full
Court. The Court may of course act through a chamber in proper instances.
But where, as here, the Court cannot properly act through a chamber, the
Court must of necessity act by itself. The jurisdiction [p 61] belongs
primarily to the Court and is retained by it to the extent that it has not,
for any reason, become effectually exercisable by the chamber.
I appreciate that, by reason of the Special Agreement, it may be said that
the case is pending before the Chamber and not before the Court. But if, as
I consider, the right to apply for permission to intervene is applicable in
relation to a case pending before such a chamber, this must be so because
"the case" is in legal theory pending before the "Court" within the meaning
of Article 62 of the Statute.
It remains for me to refer to the following statement made in the Order of
Court:
"Whereas furthermore a State which has submitted a request for permission to
intervene on which a decision has not yet been taken 'has yet to establish
any status in relation to the case' (Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 6,
para. 8), and therefore a State requesting such permission must, for the
purposes of the decision whether that request should be granted, take the
procedural situation in the case as it finds it".
In my opinion, the question raised in the case referred to by the Court, as
to whether an applicant to the full Court for permission to intervene has a
right to appoint an ad hoc judge to that Court before it hears the
application, was, as submitted above, not of the same order as the question
raised in this case as to whether such an application may competently be
heard by a chamber the selection of all of whose members was influenced, if
not practically determined, by the existing parties. The issue arising in
this case concerns the capacity of the Chamber to act judicially in relation
to the hearing and determination of the Application, having regard to the
methods by which the Chamber was constituted and to universally accepted
judicial standards. The issue so raised is too vital, too weighty, and too
substantial for me to bring myself to accept that it may be disposed of as
a mere "procedural situation" within the Court's dictum that an applicant
for permission to intervene "must ... take the procedural situation in the
case as it finds it". It is on this fundamental issue, and the proper
judicial approach to it, that I have the misfortune to disagree with the
Court.
In sum, but with respect, I consider that the Court has misconceived
Nicaragua's case. The essence of that case, as I understand it, is that the
methods by which the Chamber has been formed entitle Nicaragua to take the
view that the Chamber cannot exercise the judicial functions of the
International Court of Justice in so far as Nicaragua is concerned. The
Order of Court nowhere addresses this problem. The Haya de la Torre
principle relied upon by the Court does not by itself suffice to provide a
solution to that problem. A solution, if there is one, must, in the
circumstances of this particular case, take account of the principle of
equality of States, and there is no possibility of satisfying this principle
without [p 62] appropriate action taken by the full Court within the
framework of the very special relationship existing between itself and the
Chamber.
For these reasons, I would uphold the contention of Nicaragua that the full
Court has jurisdiction to entertain its Application. It is possible that the
conclusion so reached is not altogether neat. But it often happens that the
law has to balance the operation of one principle against that of another,
and sometimes in peculiar circumstances. If the result of this process of
mutual accommodation does not give perfect satisfaction in this case, the
difficulty lies not in the conclusion but in the premise, namely, that the
existing arrangements relating to ad hoc chambers are valid. In my opinion,
they are not; and I fear that the problems inhering in the opposite view are
not concluded with today's Order.
I end, as I began, by affirming my view that the ad hoc chamber system
provided for by Article 26, paragraph 2, of the Statute is a valuable one.
Though delays have not been unknown, the system should be capable of
affording the benefit of simplicity without the risk of fractionalizing the
functioning of the Court. In this latter respect, it seems to me that there
is something of lasting worth in the stress which the Informal Inter-Allied
Committee laid upon
"the unity and cohesion of the Court as an institution, its central
direction and the uniformity and continuity of its jurisprudence —
everything, in fact, that is implied in the conception of a single
Permanent Court of International Justice" ("Report of the Informal
Inter-Allied Committee on the Future of the Permanent Court of
International Justice, February 10,1944"', American Journal of
International Law, Supplement, 1945, Vol. 39, p. 33).
I am not convinced that in the long term (for it is this which must provide
the true institutional perspective) any risk to these values is necessarily
negated by experience of the working of the new arrangements so far. In
principle, some of the problems which exercised the mind of the Informal
Inter-Allied Committee when considering the subject of regional chambers
are inherent in the methods by which an ad hoc chamber is formed under the
existing arrangements. But for those methods, I should have had no
difficulty supporting the Order made by the Court today. It may be that
those methods can be usefully reviewed. At the moment, however, I feel
obliged respectfully to dissent.
(Signed) Mohamed Shahabuddeen.
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