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The Admission of Judges Ad Hoc In Advisory Proceedings: Some Reflections in the Light of the Namibia Case

Published online by Cambridge University Press:  28 March 2017

Michla Pomerance
Michla Pomerance*
Affiliation:
The Hebrew University of Jerusalem
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Extract

In the Namibia case, the International Court of Justice for the first time in its history received an application for the appointment of a judge ad hoc in advisory proceedings. The application was made by South Africa on the basis of Article 83 of the Rules of Court which provides for the possibility of seating judges ad hoc in advisory procedings involving “a legal question actually pending between two or more States.” No state or international organization entitled to appear before the Court opposed the South African request, and no state other than South Africa submitted an application for a judge ad hoc. After an oral hearing (held in camera over strong South African protests 8) in which only South Africa presented argument, the Court, in its Order of January 29, 1971, decided, by a vote of 10 to 5, to reject South Africa's application. The Court offered no explanation for its decision at the time. Of the five dissenting judges, only Judges Onyeama and Dillard appended to the Order the reasons for their dissent. The remaining dissenting judges (and, by implication, the Court itself) feared that early disclosure of the reasons for their stands entailed the risk of prejudging substantive questions in the case. (As will be seen below, Judges Onyeama and Dillard had no cause to entertain similar fears.) With the delivery of the opinion, however, all five dissenting judges voiced strong criticism of the Court's refusal to admit a South African judge ad hoc.

Type
Research Article
Information
American Journal of International Law , Volume 67 , Issue 3 , July 1973 , pp. 446 - 464
Copyright
Copyright © American Society of International Law 1973

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References

1 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion 11971] ICJ Rep. 16. (Hereinafter cited as Namibia Opinion.) For a succinct summary and analysis of the opinion, see Lissitzyn, , International Law and the Advisory Opinion on Namibia, 11 Collmbia J. of Transnational L. 50 (1972)Google Scholar. For a consideration of the Namibia opinion in the general setting of the South West Africa controversy, see Slonim, , South West Africa and the United Nations: An International Mandate in Dispute, Chap. XII (1972)Google Scholar.

2 For the text of the South African application, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ 2 Pleadings 641. (Hereinafter cited as Namibia Pleadings.)

The numeration of the Rules of Court referred to throughout follows that of the 1946 Rules, which were in force at the time the Namibia Opinion was rendered. The wording of the relevant provisions was retained intact in the amended Rules adopted in May 1972 (67 AJIL 195 (1973)).

3 For the South African protest, see Namibia Pleadings, 665, 666–67. The text of the hearing appears at ibid., 3–23. After delivery of the Court Order rejecting the South African application, the record of the hearing was made public. Namibia Opinion, 19; and cf. the criticism by Judge Fitzmaurice, ibid., 312, n. 13.

4 The representatives of India, the Netherlands, Nigeria, and the United States also attended the session but did not request to be heard.

5 [1971] ICJ Rep. 12.

6 Cf. the very different procedure adopted by the PCIJ in the Austro-German Customs Régime and Danzig Legislative Decrees cases. PCIJ, ser. A/B, No. 41, at 40–41 and 88–91; No. 65, at 44 and 69–71. In both cases the Orders were accompanied by statements of reasons, although in the former case, while the Order was deposited in the Court’s archives on the day of its delivery, it was not transmitted to the governments concerned until delivery of the advisory opinion.

7 See the joint dissenting declaration of Judges Fitzmaurice, Gros, and Petrén, [1971] ICJ Rep. 13–14; and the separate opinion of Judge Dillard, Namibia Opinion, 152. For a discussion of the substantive questions which might have been affected in the case, see the section on the South African arguments infra.

8 See Namibia Opinion, 128–30 (Petrén); 139–41 (Onyeama); 152–53 (Dillard); 308–16 (Fitzmaurice); and 324–31 (Gros).

It is noteworthy to contrast the 10 to 5 vote on the judge ad hoc question with the 13 to 2 vote on the issue of South Africa’s continued presence in Namibia and the 11 to 4 vote on the legal consequences for other states of South Africa’s presence in the territory.

9 This is in contrast with the Austro-German Customs Regime case in the period of the PCIJ, where the vote on the substantive question was 8 to 7. Had Austria’s application for a judge ad hoc been accepted—acceptance of the Czechoslovakian application was not endorsed by any of the judges—the vote would probably have been evenly divided (8 to 8), and, with the casting vote of the President (a member of the minority of seven), 9 to 8 in favor of the Austrian position.

10 For a general discussion of the Court’s view of its advisory function, see Pomerance, M., The Advisory Function of the International Court in the League and UN Eras, Chap. V (1973)Google Scholar. See also Keith, K. J., The Extent of the Advisory Jurisdiction of the International Court of Justice (1971)Google Scholar.

11 A new paragraph was added to Art. 71 of the 1926 Rules of Court. The original draft of the PCIJ Statute contained an article on advisory opinions under whose terms judges ad hoc would have been admitted in advisory proceedings in which the question “forms the subject of an existing dispute;” but in the course of the drafting process the entire article was suppressed. In 1926 the Court turned down a proposal by President Huber to allow ad hoc judges in quasi-contentious advisory proceedings, primarily because of hesitations as to the constitutionality of such a rule. The Court’s reversal in 1927 was probably attributable mainly to the peculiar difficulties presented by the Danube Commission case in 1927. For a summary of the developments leading up to the acceptance of judges ad hoc in advisory cases, see the arguments of the agent of Danzig in the Danzig Legislative Decrees case, PCIJ, ser. C, No. 77, at 176–78; and Hudson, The Permanent Court of International Justice, 1920–1942, at 504–05 (1943).

On the assimilation of advisory to contentious procedure in the PCIJ period, see Goodrich, , The Nature of the Advisory Opinions of the Permanent Court of International Justice, 32 AJIL 738 (1938)CrossRefGoogle Scholar; Hudson, Chap. XXII; and Pomerance, supra note 10, Chap. I.

12 As stated by the Committee of Three set up to study the question of the judge ad hoc: “Where there are in fact contending parties, the difference between contentious cases and advisory cases in only nominal.” PCIJ, ser. E., No. 4, at 76. The differentiation between two categories of opinions traces back to the “dispute-question” distinction referred to in Art. 14 of the League Covenant. That distinction, though it was originally intended to be in the nature of a “whole-part” distinction, i.e., the whole dispute as against a question related to the dispute, came in practice to be viewed as a “dispute-non-dispute” distinction, i.e., a dispute as against a question unrelated to a dispute. See Pomerance, supra note 10, Chap. I, n. 23.

13 Jurisdiction of the Courts of Danzig, Greco-Bulgarian Communities, Railway Traffic between Lithuania and Poland, Polish War Vessels in Danzig, Polish Nationals in Danzig, and Caphandaris-Molloff Agreement cases.

14 In the Greco-Turkish Agreement case, Greece and Turkey waived the right. See PCIJ, ser. E, No. 5, at 262.

15 PCIJ, ser. A/B, No. 41, at 88–91.

16 Ibid., No. 65, at 69–71. In the case of Minority Schools in Albania, the Albanian Government apparently did not apply for a judge ad hoc, but the Court offered the view that the question did not relate to an existing dispute and that Rule 71(2) was therefore inapplicable. Ibid., No. 64, at 6.

17 The Court held that “all governments which, in the proceedings before the Court come to the same conclusion, must be held to be in the same interest.” Ibid., No. 41, at 89. Five judges would have granted the Austrian request for a judge ad hoc on the ground that, since only Austria’s obligations were at issue, Germany could not be reckoned a “party” to the dispute in the case. Ibid., 91.

18 Art. 87(1) of the 1972 Rules.

19 Art. 89 of the 1972 Rules.

20 Namibia 2 Pleadings, 21, 23. For South Africa’s arguments on its judge ad hoc application, see ibid., 5–23; and see also its arguments on the existence of a dispute, 1, ibid., 443–47, and 2, ibid., 154–55, 185–87, 221–27, and 566–67.

21 See [1962] ICJ Rep. 345. (The Court’s remarks were made in the context of rebutting South Africa’s fourth preliminary objection.) And cf. also the separate opinions of Judges Bustamante and Jessup, ibid., 381 and 436.

22 Namibia 2 Pleadings, 17.

23 Ibid.

24 Ibid., 8.

25 Ibid., 20, citing 2 Rosenne, The Law and Practice of the International Court, 730 (1965).

26 Namibia 2 Pleadings, 18–21. Cf. President Huber’s 1926 proposal to the PCIJ to admit judges ad hoc where the advisory opinion concerned proceedings “pending before the Council of the League of Nations or before some arbitration or conciliation tribunal.” PCIJ, ser. D, No. 2 (Add.), at 253–54. This criterion was not explicitly adopted in 1927, nor in the subsequent revision of the PCIJ Rules, although it was apparently implied. The relevant discussions surrounding adoption of the ICJ Rules in 1946 were never made public. In any case, adoption of the “Huber criterion” for the interpretation of “pending” would not exclude the applicability of Rule 83 to the Namibia case, since the matter could be deemed to be “pending” before the Security Council.

27 The affirmation that the questions before the Court were “legal” ones within the terms of Rule 83 conflicted with South Africa’s contention in its Written Statement that the Court should decline to give an opinion because of the strong political background and predominantly factual aspects of the request. See Namibia 1 Pleadings, 425–42, and 447–50. To get around this apparent inconsistency, Mr. de Villiers argued, in effect, as follows: If the Court agrees with South Africa that the question is predominantly political and/or factual, then it must refuse to proceed with the case; but if the question is presumed to be “legal” for the purposes of Art. 96(1) of the Charter, it must also be “legal” for the purposes of Rule 83. 2 ibid., 18–19. And cf. the dissenting opinion of Judge Fitzmaurice, Namibia Opinion, 309.

28 See Namibia 2 Pleadings, 175–84.

29 See, e.g., the Written Statements of the Secretary-General, ibid., 75–77; and India, ibid., 830–37. Taken as a whole, the pre-request history tended to support the narrow interpretation of the scope of the question. (See Pomebance, supra note 10, Chap. III; and see the Written Statement of the United States, Namibia 1 Pleadings, 852–54.) Nevertheless, there were inconsistencies in the record; and most states participating in the pleadings did, in fact, discuss the validity of mandate revocation; some, even while protesting that it was unnecessary or improper to do so. See, e.g., the Written Statement of India, ibid., 830–42. The representative of the Secretary-General retreated in the course of the oral proceedings from his earlier rigid insistence on attributing a narrow scope to the question. 2 ibid., 31 and 484.

30 Ibid., 21.

31 1 ibid., 417.

32 Ibid., 447.

33 2 ibid., 17.

34 This is in contrast with the arguments of Danzig in the Danzig Legislative Decrees case, in which it acknowledged the absence of any interstate dispute in the case and the consequent inapplicability of the relevant provision of the Rules, and rested its plea for a judge ad hoc solely on the Court’s discretion. PCIJ, ser. C, No. 77, at 171–79.

35 Namibia 1 Pleadings, 421–42.

36 Ibid., 417–18. The mandatory abstention argument was not (as the Court appears, erroneously, to have assumed, Namibia Opinion, 22) raised by South Africa as a challenge to the validity of the requesting resolution. On the other hand, the issue of voluntary abstention (of permanent Security Council members) was invoked with respect to both the requesting and substantive resolutions. Namibia 1 Pleadings, 403–17.

37 Note the difficulties obviously experienced by the representative of the Secretary-General and the representative of Finland in their attempts to explain away the 1962 precedent. 2 ibid., 43 and 70.

38 The term is borrowed from Claude, States and the World Court: The Politics of Neglect, 11 Virginia J. of Int. L. 344 (1971).

38 See the remarks of the representative of Nepal in the Secretary Council, UN Doc. S/PV. 1550, July 29, 1970, at 38–40.

40 The argument of Judge Gros appears to follow these lines. See Namibia Opinion, 328–29; and see text at n. 74; infra.

41 Dissenting opinions of Judges Fitzmaurice and Gros, Namibia Opinion, 316, 325–26 and 330.

42 See ibid., 24–27.

43 Ibid., 24. As for South Africa’s “Article 32 challenge” to the formal validity of the requesting resolution, the Court noted that the question of Namibia had been placed on the Security Council’s agenda as a “situation,” not a “dispute,” and no state had contested that appellation at the time. Ibid., 22–23.

44 Ibid., 24.

45 Ibid., 25.

46 Ibid.

47 Ibid., 26.

48 Ibid.

49 Ibid.; italics in original. It may be noted that the corresponding articles of the PCIJ Rules referred throughout to questions which relate to disputes.

50 In the Peace Treaties case (First Phase), the existence or nonexistence of a dispute was one of the substantive questions embodied in the request; but no application to seat a judge ad hoc was made in that case—not even in the Second Phase, after the Court had (in the First Phase) already affirmed the existence of a dispute.

As for the PCIJ advisory experience, one of the substantive questions in the Caphandaris-Molloff Agreement case similarly related to the existence or nonexistence of a dispute; and for this reason, the Greek government was at first reluctant to appoint a judge ad hoc in the case. But the Court held that since a dispute existed over this question, the parties were entitled to appoint judges ad hoc. PCIJ ser. E, No. 8, at 253.

51 See supra note 41.

52 Namibia Opinion, 27, citing PCIJ, ser. A/B, No. 65, at 70–71.

53 Namibia Opinion, 27.

54 Judges Petrén and Gros explicitly interpreted the Court’s statement in this manner (ibid., 128 and 330). Implicitly, the other dissenters on the judge ad hoc issue also adopted this interpretation.

55 Such judicial policy may have underlain the PCIJ Order in the Danzig Legislative Decrees case. See PCIJ, ser. A/B, No. 65, at 70. And cf. the statement of Professor (as he then was) Basdevant before the PCIJ in the Austro-German Customs Régime case, PCIJ, ser. C, No. 53, at 207.

56 Namibia Opinion, 102–103.

57 Ibid., 68. Judge Ammoun does not adequately explain why this should be so. After all, Art. 31 of the Statute envisages, as well, the appointment of judges ad hoc when neither party has a judge on the Bench. And since the initiative for appointing a judge ad hoc rests with the states concerned, is it not conceivable that only one of the parties would make application? Cf. the dissenting opinion of Judge Fitzmaurice, ibid., 311 and n. 12; see also Hudson, supra note 11, at 361, n. 99.

On the question of “parties in the same interest” in advisory proceedings, see the views expressed in the Austro-German Customs Regime case, cited supra, note 17; and see the dissenting opinion of Judge Fitzmaurice Namibia Opinion, 312 and n. 14.

58 Namibia Opinion, 68.

59 Ibid. “The legal personality of Namibia would thus have been judicially recognized and Namibia would have appeared for the first time in international proceedings.”

60 Judge Ammoun, it may be noted, omitted to support his thesis by any reference to France’s pleading in the case.

61 See his arguments, ibid., 175–77.

62 Ibid., 175.

63 Ibid., citing the 1966 judgment in the South West Africa cases.

64 Ibid., 176. Thus, Judge de Castro was willing, as the Court was not, to acknowledge the involvement of a UN v. South Africa dispute in the case. But, as for an interstate dispute, it was, to his mind, “inconceivable that there could be a question or dispute between those States which have voted for a resolution and a State which denies validity thereof.” Ibid.

65 Ibid., 177.

66 The interstate dispute was said to relate primarily to the legality and effect of the UN resolutions on termination of the mandate and the definition of the present legal status of Namibia. See ibid., 128–29, 314–15, and 327–28. The second “party” to the dispute comprised, according to Judge Gros, those states which, “through the procedures available to the United Nations, have sought and procured the revocation of South Africa’s Mandate.” Ibid., 328. For Judge Petrén, it apparently consisted of the states opposing South Africa’s contentions in the pleadings and those that challenged, on t i e direct interstate level, South Africa’s right to represent Namibia internationally. Ibid., 128–29; and see Judge Fitzmaurice’s views, ibid., 311–12 and 315.

67 Judge Gros’s interpretation of Rules 82 and 83 did not leave any room for avoiding a determination of the question of legal pendency. See further, infra.

68 Because Judges Onyeama and Dillard, alone among the dissenting judges, relied exclusively on this ground, they alone felt able to append to the Order of January 29, 1971 the reasons for their dissent.

69 Namibia Opinion, 310; italics in original. The wording of Rule 82 (which relates to the application by analogy of contentious procedure in general) bore out this interpretation, Judge Fitzmaurice said. The test of legal pendency was to be considered “above all”—which meant that it was a primary, not a conclusive test.

On the relationship between Article 68 and Rule 83, see also the views of the remaining dissenters, ibid., 128 (Petrén), 139 (Onyeama), 152 (Dillard) and 330–31 (Gros).

70 Ibid., 140 (Judge Onyeama).

71 Ibid., 153 (Judge Dillard).

72 Ibid., 308 (Judge Fitzmaurice).

73 Ibid., 140–41; 153, n. 1; 312; and 326.

The agent of Danzing had argued for the existence of residual discretion, even though no equivalent to Art. 68 was yet in force. PCIJ ser. C, No. 77, at 171–79. That argument the Court had rejected. For criticism of the PCIJ’s decision as reflecting a too narrow formalism, see Lachaume, , Le juge “ad hoc,” 70 Rev. Genéralé de Droit Int. Public 302 (1966)Google Scholar.

74 Namibia Opinion 329.

75 Ibid., 325–26 and 330.

Judge Gros obviously did not accept the Court’s view that Rule 83 “envisages a more restricted hypothesis” than does Rule 82. See text at supra note 49.

It may be noted, too, that employment of Art. 68 could not, on the Gros thesis, spare the Court embroilment in the thicket of Rule 83; for only after a negative decision on the question of legal pendency could the issue of residual discretion arise.

Unlike Judge Gros, Judge Fitzmaurice, concurring in this respect with the Court, considered that the judge ad hoc issue, “being a matter of the composition of the Court,” had generally, “to be taken in advance of everything else;” but he thought that “this situation may well point to a somewhat serious flaw in the present Rules.” If so, it is a flaw which the 1972 revision of the Rules has done nothing to correct.

76 Only on the basis of Art. 68 could the need for a full preliminary procedure be avoided in the case. Ibid., 316, 128–29. For the issues which, in the view of the minority judges, were prematurely disposed of by the Court (including the issue of the scope of the question and the possibility of undertaking extensive factual enquiries), see ibid., 129, 316, and 330.

77 For the most oft-quoted definition of “dispute,” see the Mavrommatis Palestine Concessions case, PCIJ, ser. A, No. 2, at 11; and cf [1950] ICJ Rep. 74; [1962] ICJ Rep. 328 and 566–67; [1963] ICJ Rep. 27 and 109.

78 The distinction between dispute and non-dispute remains—as Judge Anzilotti said of the “dispute-question” distinction in the time of the PCIJ—”a matter of words.” PCIJ, ser. A/B, No. 65, at 64. Cf. also Judge Fitzmaurice’s observations in the Northern Cameroons case, [1963] ICJ Rep. 109.

79 Namibia Opinion, 24.

80 This interstate aspect was, moreover, related to the “legal consequences for States of the continued presence of South Africa in Namibia.” See the dissenting opinion of Judge Fitzmaurice, ibid., 315; and see the argument of Mr. de Villiers in Namibia 2 Pleadings, 21.

81 The Court seemed intent on avoiding any procedure that might imply recognition of South Africa as a quasi-litigant rather than as a mere “informateur.” Thus, e.g., the alphabetical order of hearing states (other than Finland, the sponsor of the request in the Security Council) was maintained; and South Africa was not permitted to present its plebiscite proposal out of the regular order. Nevertheless, as Judge Fitzmaurice commented, “the Court found itself obliged in practice, and in a manner virtually unprecedented in previous advisory proceedings, to conduct the oral hearing as if a litigation were in progress.” Namibia Opinion, 313, n. 16.

82 See, in this connection, the remarks of Judge Huber, 45 Inst. of Int. L., Annuaire 428 (I, 1954), who, however, advised “une prudente réserve” regarding the judge ad hoc problem. See, generally, the 1954 discussions of the Institute, especially, at 427–30, 465–66, 501–503, 506, 528, and 545. (In his “academic” capacity, incidentally, Mr. (as he then was) Fitzmaurice had urged suppression of the judge ad hoc institution. See, e.g., ibid., 444–45 and 514.)

For discussions of the advantages and drawbacks of the judge ad hoc institution, see also Lachaume, supra note 73, at 265–71; 2 Rosenne, supra note 25, at 202–205; Gross, Leo, The International Court of Justice: Consideration of Requirements for Enhancing its Rôle in the International Legal Order, 65 AJIL 295–299 (1971)Google Scholar; and Mani, V. S., Audi Alteram Partem: Journey of a Principle from the Realms of Private Procedural Law to the Realms of International Procedural Law, 9 Indian J. of Int. L. 400–405 (1969)Google Scholar.

83 1 Rosenne, supra note 25 at 203; italics added.

84 [1950] ICJ Rep. 92.

85 See, generally, Pomebance, supra note 10, Chap. V; and Gross, Leo, The International Court of Justice and the United Nations, 121, Rec. Des Cours 319–439 (II, 1967)Google Scholar.

86 See Namibia Opinion, 45. And see the criticism of the Court’s hesitancy by Judges Petrén (131), Onyeama (143), Dillard (151), Fitzmaurice (301–302), and Gros (331).

87 See, especially, his separate opinions in the Admission and Peace Treaties cases, [1948] ICJ Rep. 73–81; [1950] ICJ Rep. 79–88.

88 Ibid., 85–86.

89 Ibid., 88.

90 Pomerance, supra note 10, Chap. I.

91 [1950] ICJ Rep. 79.

92 On the effect which the Court’s new organic connection has had for the advisory jurisdiction, see especially Gross, supra note 85, passim; and Rosenne, supra note 25, Chap. XX.

93 See supra note 84.

94 See, in this connection, Gross, supra note 85, at 415–21, and, in particular, his trenchant observation with respect to the difference between majority and minority views in the Peace Treaties case. The minority (which included Judge Winiarski) emphasized the equivalence in practice between advisory opinions and judgments, thereby writing “an epilogue for the past”; the Court stressed the purely “advisory” nature of opinions, thus writing “a prologue for the future.” Ibid., 416.