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Judges ad hoc of the International Court of Justice
Published online by Cambridge University Press: 16 March 2020
Abstract
Judges ad hoc of the International Court of Justice have been widely criticized for their supposed lack of impartiality. This criticism may seem all the more powerful if one takes into account that judges ad hoc were created as a means to avoid the Court’s bias and appearance of bias. However, recent developments in the appointment of judges ad hoc indicate that, far from being a detriment to the states’ perception of the Court’s impartiality, judges ad hoc are a means to enhance the perception that the Court as a whole is impartial. Such developments include the increased frequency with which former elected judges are appointed judges ad hoc, the practice of electing judges from the ranks of former (or sitting) judges ad hoc, and the appointment of nationals or non-nationals as judges ad hoc. The institution of judges ad hoc has come full circle, and should be regarded as fulfilling the function for which it was created.
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Footnotes
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The authors would like to thank the editors of the ICJ section of the Journal and the anonymous reviewers for their comments. All views expressed by the authors are personal and do not necessarily reflect the views of any of the institutions to which they are affiliated.
References
1 Under Art. 31(1) of the Court’s Statute, a state party to a case has the right to appoint a judge ad hoc if none of the Court’s elected judges is a national of that state, including cases in which an elected judge cannot sit in a case due to conflict. Art. 31(2) confers this right on a state which is the only party no national of which is already serving as a titular judge, while Art. 31(3) provides the same right in cases in which no national of either state party is an elected judge. By virtue of Art. 31(4), judges ad hoc may also be appointed in cases heard by a Chamber of the Court and, under Art. 31(5), if there are ‘several parties in the same interest’, they are considered to be ‘one party only’ in appointing a single judge ad hoc. Under Art. 31(6), judges ad hoc are equated to elected judges in respect of qualifications, incompatibility, and impartiality, must make a solemn declaration in open court and, after appointment, ‘shall take part in the decision on terms of complete equality with their colleagues’. The Court found states to be ‘in the same interest’ under Art. 31(5) in only two cases. See South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Order of 20 May 1961, [1961] ICJ Rep. 13, at 14; North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 8. In the 1973 Fisheries Jurisdiction cases, the Court, although not consolidating the proceedings, found that Germany and the United Kingdom were in the same interest and, as a British elected judge was a member of the Court, Germany had no right to appoint a judge ad hoc. See Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment of 2 February 1973, [1973] ICJ Rep. 49, at 51, para. 7. Similarly, the Court found the United Kingdom and the United States to not be in the same interest in the 1992 Lockerbie cases. See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom), Judgment of 27 February 1998, [1998] ICJ Rep. 9, at 13, para. 9. In the 1974 Nuclear Tests cases, Australia and New Zealand separately appointed the same judge ad hoc, and Art. 31(5) was not expressly discussed. See Nuclear Tests (Australia v. France), Judgment of 20 December 1974, [1974] ICJ Rep. 253, at 255, para. 3; Nuclear Tests (New Zealand v. France), Judgment of 20 December 1974, [1974] ICJ Rep. 457, at 458, para. 3. In the 2016 Nuclear Disarmament cases, Pakistan, the only one of three respondents no national of which was an elected judge, did not appoint a judge ad hoc. See Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Judgment of 5 October 2016, [2016] ICJ Rep. 552, at 556, para. 3. In the 2004 Legality of Use of Force judgments, the Court held, without explanation, that the judges ad hoc appointed by three of the respondent states, namely France, the Netherlands, and the United Kingdom, could not sit with the Court to hear preliminary objections, as the Court already included elected judges of British, Dutch, and French nationality. See Legality of Use of Force (Yugoslavia v. Belgium), Judgment of 15 December 2004, [2004] ICJ Rep. 279, at 287, para. 18.
2 In this article ‘elected judge’ and ‘titular judge’ are used interchangeably to denote ‘members’ of the Court elected through the procedure under Arts. 4–12 of the Court’s Statute.
3 This article does not discuss arbitration or individual complaints under human rights treaties. However, there is a parallel between judges ad hoc and party-appointed arbitrators. See Shaw, M., Rosenne’s Law and Practice of the International Court 1920–2015 (2015), vol. IIIGoogle Scholar, at 1112; Merrills, J. G., International Dispute Settlement (2017)CrossRefGoogle Scholar, at 145–6; Hernández, G. I., The International Court of Justice and the Judicial Function (2014)CrossRefGoogle Scholar, at 145–7; Kolb, R., The International Court of Justice (2013)Google Scholar, at 119–20; Oda, S. ‘The International Court of Justice viewed from the Bench (1976–1993)’, (1993) 244 Recueil des Cours 9Google Scholar, at 115–16.
4 Section 2 below. See also Hernández, supra note 3, at 145.
5 Charlesworth, H., ‘Judge ad hoc of the International Court of Justice’, in McCormack, T. and Saunders, C. (eds.), Sir Ninian Stephen: A Tribute (2007), 176Google Scholar; Scobbie, I., ‘“Une héresie en matière judiciaire”?: The role of the judge ad hoc in the International Court’, (2005) 4 Law and Practice of International Courts and Tribunals 421CrossRefGoogle Scholar; Rosenne, S., ‘International Court of Justice: Practice directions on Judges ad hoc; Counsel and Advocates: and Submission of New Documents’, (2002) 1 Law and Practice of International Courts and Tribunals 223CrossRefGoogle Scholar; Oraison, A., ‘Réflexions sur l’institution du juge ad hoc siégeant au tribunal du Palais de la Paix en séance plénière ou en Chambre ad hoc’, (1998) 31 RBDI 272Google Scholar; Chatterjee, S. K., ‘The role of the ad-hoc judge in the International Court of Justice’, (1979) 19 Indian JIL 372Google Scholar; Mathy, D., ‘Un juge ad hoc en procédure devant la Cour internationale de Justice’, (1976) 12 RBDI 528Google Scholar; Ntanda Nsereko, D. D., ‘The International Court, Impartiality and Judges ad hoc’, (1973) 13 Indian JIL 207Google Scholar; Pomerance, M., ‘The Admission of Judges ad hoc in Advisory Proceedings: Some Reflections in the light of the Namibia Case’, (1973) 67 AJIL 446CrossRefGoogle Scholar; Jiménez de Aréchaga, E., ‘Judges ad hoc in Advisory Proceedings’, (1971) 31 ZaöRV 697Google Scholar. Two elected judges have written on judges ad hoc, see Kooijmans, P. H. and Bordin, F. L., ‘Article 31’, in Zimmermann, A. and Tams, C. (eds.), The Statute of the International Court of Justice – A Commentary (2019), 604Google Scholar; Schwebel, S. M., ‘National Judges and Judges ad hoc of the International Court of Justice’, (1999) 48 ICLQ 889CrossRefGoogle Scholar. Four judges ad hoc have also written on the topic, see Valticos, N., ‘Pratique et éthique d’un juge “ad hoc” à la Cour internationale de Justice’, in Ando, N.et al. (eds.), Liber Amicorum Judge Shigeru Oda (2002), Vol. I, 107Google Scholar; Thierry, H., ‘Au sujet du juge “ad hoc”’, in Armas Barea, C. A.et al. (eds.), Liber Amicorum ‘In memoriam’ of judge José Maria Ruda (2000), 285Google Scholar; Valticos, N., ‘L’évolution de la notion de juge ad hoc’, (1997) 50 RHDI 1Google Scholar; Lauterpacht, E. and Skubiszewski, K., ‘The Role of ad hoc Judges’, in Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to celebrate the 50th Anniversary of the Court (1997), 370Google Scholar.
6 This is the notion which the International Criminal Tribunal for the former Yugoslavia (ICTY) identified on the basis of a detailed analysis of international and domestic law and jurisprudence. See Prosecutor v. Furundžija, Appeals Judgement, Case No. IT-95-17/1-A, 21 July 2000, para. 189. The contours of the notion of impartiality have so far escaped a precise definition, which is the reason why the constitutive instruments of international courts and tribunals generally define impartiality by reference to activities incompatible with the judges’ functions. In general, see Guillaume, G., ‘The Position of the International Judge’, (2011) 74 Annuaire de l’Institut de Droit International – Session de Rhodes 4; Ruiz Fabri, H. and Sorel, J. M. (eds.), Indépendance et Impartialité des Juges Internationaux (2010)Google Scholar.
7 See Hernández, supra note 3, at 130–2. Properly analysing the notion of impartiality would require a dedicated scholarly endeavour which transcends the scope of this article.
8 Permanent Court of International Justice, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (16 June–24 July 1920) (1920), 37.
9 Ibid., at 73 (International Law Union, Sweden).
10 Ibid., (International Law Union, Austria).
11 Ibid., (Denmark, Norway).
12 Ibid., (Switzerland).
13 Ibid., at 165.
14 Ibid., at 198, 199, 305.
15 Ibid., at 327.
16 Ibid., at 528–9.
17 Ibid., at 535.
18 Ibid., at 531.
19 Ibid., at 533.
20 Ibid., at 535.
21 Ibid., at 531.
22 Ibid., at 529–30.
24 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 of International Justice (1920), 34, 36.
25 Ibid., at 48.
26 Ibid., at 57.
27 Ibid., at 130–1 (Sub-committee of the Third Committee), 107–10 (Third Committee), 217–18.
28 Ibid., at 256.
29 Committee of Jurists on the Statute of the Permanent Court of International Justice, Minutes of the Session held at Geneva, March 11th –19th , 1929, League of Nations Document C.166.M.66.1929.V, at 50–2.
30 Ibid., at 70, 84–7.
31 Ibid., at 53–5.
32 Committee of Jurists on the Statute of the Permanent Court of International Justice, Reports adopted by the Committee at its Session held at Geneva from March 11th to 19th, 1929, League of Nations Document C.142.M.52.1929.V, at 7.
33 Ibid., at 3.
34 Ibid.
35 For the text of the Protocol, see PCIJ Series D, No. 1 (Third edition), at 10.
36 Acts relating to the Constitution of the Permanent Court of International Justice, League of Nations Document C.80.M.28.1936.V, at 38.
37 PCIJ Series D, No. 1 (Third edition), at 10, footnote 2.
38 Pajzs, Csáky, Esterházy, PCIJ Series A/B, No. 66; Losinger, PCIJ Series A/B, No. 67; Pajzs, Csáky, Esterházy, PCIJ Series A/B, No. 68; Lighthouses in Crete and Samos, PCIJ Series A/B, No. 71; Panevezys–Saldutiskis Railway, PCIJ Series A/B, No. 75; Panevezys–Saldutiskis Railway, PCIJ Series A/B, No. 76; Electricity Company of Sofia and Bulgaria, PCIJ Series A/B, No. 77; Société Commerciale de Belgique, PCIJ Series A/B, No. 78.
39 Report of the informal Inter-allied Committee on the future of the Permanent Court of International Justice (10 February 1944), (1945) 39 AJIL Supplement 1, at 11, para. 39.
40 Ibid., at 13, para. 44(a).
41 Ibid., at 12, para. 41.
42 Ibid., at 13, para. 44(a).
43 Ibid., at 13, para. 44(b).
44 Doc. 2, G/7(d)(1) (31 October 1944) (Venezuela), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. III, at 227–8; Doc. 2, G/14(g)(2) (7 May 1945) (Cuba), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. III, at 519.
45 Doc. Jurist 5, G/5 (9 April 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 335–6.
46 Doc. Jurist 14, DP/4 (10 April 1945) (United Kingdom), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 317; Doc. Jurist 16, G/12 (10 April 1945) (Venezuela), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 370–1; Doc. Jurist 18, DP/6 (11 April 1945) (Liberia), Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 306; Doc. Jurist 21, DP/7 (11 April 1945) (Netherlands), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 309.
47 Doc. Jurist 47, G/36 (14 April 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 490; Doc. Jurist 49(47), G/38 (15 April 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 506; Doc. Jurist 59, G/47 (20 April 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 554–5; Doc. Jurist 75(Revised), G/62 (27 April 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIV, at 764–5.
48 Doc. 240 IV/1/15 (10 May 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIII, at 163; Doc. 1171 IV/13 (23 June 1945), in Documents of the United Nations Conference on International Organization (San Francisco, 1945), vol. XIII, at 126–7.
49 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 24 July 1964, [1964] ICJ Rep. 6, at 9.
50 See Appendix.
51 Appointments in cases in which the application was filed before 2000 are considered made before 2000.
52 See Appendix.
53 In addition to the cases to which note 54 below refers, elected judges recused themselves in: Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, [2012] ICJ Rep. 624, at 631, para. 3 (recusal of Judge Gaja); Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment of 13 February 2019, para. 4 (recusal of Judge Donoghue); Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Order of 3 October 2018, para. 4 (recusal of Judge Donoghue). In these three cases, states appointed as judges ad hoc persons who had not previously been titular judges.
54 Certain Property (Liechtenstein v. Germany), Judgment of 10 February 2005, [2005] ICJ Rep. 6, at 11, para. 7 (recusal of Judge Simma); Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] ICJ Rep. 177, at 182, para. 6 (recusal of Judge Abraham); Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Order of 19 April 2017, [2017] ICJ Rep. 104, at 111, para. 10 (recusal of Judge Gevorgian).
55 See the table in Giorgetti, C., ‘The Challenge and Recusal of Judges of the International Court of Justice’, in Giorgetti, C. (ed.), Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals (2014), 3Google Scholar, at 18–20.
56 Lauterpacht, H., The Function of Law in the International Community (1933), 230–2Google Scholar; Chatterjee, supra note 5, at 377; Kooijmans and Bordin, supra note 5, at 607–8; Scobbie, supra note 5, at 439–41; Shaw, supra note 3, at 1116; Thirlway, H., The International Court of Justice (2016), 14Google Scholar. Contra, see Charlesworth, supra note 5, at 187–8; Schwebel, supra note 5, at 893. According to Valticos, judges ad hoc accept their appointment only if ‘dans l’ensenble, il[s] partage[nt] les vues du gouvernement intéressé’. See Valticos, ‘L’évolution de la notion de juge ad hoc’, supra note 5, at 10.
57 Annuaire de l’Institut de Droit International – Session d’Aix-en-Provence, vol. 45–I (1954), at 429.
58 Hernández, supra note 3, at 152.
59 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December 2007, [2007] ICJ Rep. 832, at 875–6, para. 142(1) and (2).
60 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment of 16 December 2015, [2015] ICJ Rep. 665, at 740, para. 229(2)–(4).
61 Ibid., at 741, para. 229(6).
62 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, [2009] ICJ Rep. 61, at 101–3, paras. 115–22. See M. Lando, Maritime Delimitation as a Judicial Process (2019), at 21–3.
63 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua); Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment of 2 February 2018, [2018] ICJ Rep. 139, at 226, para. 205(4) and (5); Nicaragua v. Colombia, supra note 53, at 719–20, para. 251(4); Romania v. Ukraine, supra note 62, at 131, para. 219; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, [2007] ICJ Rep. 659, at 760–3, para. 321(3).
64 Schwebel, supra note 5, at 895.
65 Charlesworth, supra note 5, at 188.
66 For example, see the voting record in Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), Judgment of 31 March 2014, [2014] ICJ Rep. 226, at 298–300, para. 247(2)–(5) and (7).
67 See Hernández, supra note 3, at 131–2.
68 See Resolution concerning the Internal Judicial Practice of the Court (12 April 1976), Acts and Documents concerning the Organization of the Court No. 6, at 174–83.
69 However, multiple appointments might give rise to the appearance of bias, as argued in certain investor-state arbitrations. For example, see Raffeisen Bank International A.G. & Raffeisenbank Austria D.D. v. Republic of Croatia, ICSID Case ARB/17/34, Decision on the proposal to disqualify Stanimir Alexandrov (17 May 2018), paras. 29–31, 87–9.
70 Hernández, supra note 3, at 147–8 (including footnote 131).
71 See Appendix.
72 President Yusuf and Judges Bennouna, Cançado Trindade, and Gaja.
73 For criticism of this position, see Section 3.1 above.
74 Nicaragua v. Colombia, supra note 53, at 631, para. 3. See also CR 2012/8, at 10.
75 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, [2009] ICJ Rep. 213, at 219, para. 4.
76 Judges Bennouna, Evensen, Nagendra Singh, Sepúlveda-Amor, and Yusuf were elected within three years of the disposal of the cases in which they had been judges ad hoc. Judges Ago, de Castro, Morelli, Mosler, and Spiropoulos were elected, respectively, 19, nine, seven, seven and five years from the completion of the cases in which they had been judges ad hoc.
77 Ambatielos (Greece v. United Kingdom), Judgment of 1 July 1952, [1952] ICJ Rep. 28, at 46. See also ibid., at 55–7 (Individual Opinion Spiropoulos). Ambiatielos was decided on the preliminary objections six years before the beginning of Judge Spiropoulos’s term.
78 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, [2004] ICJ Rep. 12, at 70–3, para. 153.
79 Jurisdictional Immunities of the State (Germany v. Italy), Order of 6 July 2010, [2010] ICJ Rep. 310, at 321, para. 35(A). Judge Gaja later agreed that Italy had violated Germany’s immunity from execution, but did so after he had already been elected to the Court. See Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment of 3 February 2012, [2012] ICJ Rep. 99, at 155, para. 139(2)–(3).
80 Current judges who were ILC members are Judges Bennouna, Crawford, Gaja, Gevorgian, Robinson, Tomka, and Xue.
81 For reference, see McLachlan, C., ‘The Assault on International Adjudication and the Limits of Withdrawal’, (2019) 68 ICLQ 44Google Scholar; Cohen, H. G., ‘Multilateralism’s Life Cycle’, (2018) 112 AJIL 47Google Scholar; Crawford, J., ‘The Current Political Discourse concerning International Law’, (2018) 81 Modern Law Review 1CrossRefGoogle Scholar. Alvarez had already warned of multilateralism’s limits. See Alvarez, J. E., ‘Multilateralism and its Discontents’, (2000) 11 EJIL 393CrossRefGoogle Scholar. Recently, Criddle and Fox-Decent argued that, despite the challenges it faces, multilateralism is a necessary feature in certain fields of international law. See Criddle, E. J. and Fox-Decent, E., ‘Mandatory Multilateralism’, (2019) 113 AJIL 272CrossRefGoogle Scholar.
82 Multilateralism and the International Court of Justice, Speech of the President of the International Court of Justice before the Security Council, 9 November 2018, para. 5, available at www.icj-cij.org/files/press-releases/0/000-20181109-PRE-01-00-EN.pdf.
83 Certain treaties provide that states parties should or must settle their disputes using other means before filing an application with the Court. For example, see Art. 22 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 295.
84 Section 2 above.
85 Scobbie, supra note 5, at 422, 456; Hernández, supra note 3, at 151.
86 UN Doc. A/73/PV.24 (25 October 2018), at 12–13 (Cabo Verde).
87 Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, [1974] ICJ Rep. 3; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment of 25 July 1974, [1974] ICJ Rep. 175. Similar cases also took place in arbitral proceedings, see South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, 170 ILR 180. Generally, not appointing judges ad hoc is coupled with, and perhaps a result of, non-appearance. However, there have been cases in which states appointed a judge ad hoc, and later decided not to appear. See A. Sarmiento Lamus and W. Arévalo Ramírez, ‘Non-appearance before the International Court of Justice and the Role and Function of Judges ad hoc’, (2017) 16 Law and Practice of International Courts and Tribunals 398, at 406–11.
88 Kooijmans and Bordin, supra note 5, at 606; Thirlway, supra note 56, at 14; Valticos, ‘Pratique et éthique d’un juge “ad hoc” à la Cour internationale de Justice’, supra note 5, at 108–9.
89 See Appendix.
90 Section 2 above.
91 Rosenne, supra note 5, at 233. Art. 3(1) of the Statute provides that ‘[t]he Court shall consist of fifteen members’, who are the 15 judges elected through the procedure under Arts. 4–12 of the Statute.
92 According to Shaw, ‘it would appear undesirable as a matter of principle for a judge ad hoc to possess a nationality already represented on the bench’. See Shaw, supra note 3, at 1125.
93 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Order of 23 July 2018, [2018] ICJ Rep. 406 (Judge Abraham and Judges ad hoc Cot and Daudet.).
94 Question of the Delimitation of the Continental Shelf beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Judgment of 17 March 2016, [2016] ICJ Rep. 100 (Judges Donoghue and Gevorgian and Judges ad hoc Brower and Skotnikov).
95 A broadly comparable issue could arise if states which were permitted to intervene under the Statute already had judges of their nationality on the bench. In Whaling, New Zealand intervened under Art. 63 of the Statute after Australia had appointed its judge ad hoc, but a New Zealand national was a sitting judge. The Court found that, since New Zealand did not intervene as a party, it could not be a party ‘in the same interest’ as Australia. See Whaling in the Antarctic (Australia v. Japan), Order of 6 February 2013, [2013] ICJ Rep. 3, at 9, para. 21. Judge Owada expressed ‘serious reservations’ on the Court’s approach. See ibid., at 11–13 (Declaration Owada).
96 Cohen, supra note 81, at 49.
98 See Appendix.
99 Even before 2000, diversity of appointments was not high. See ibid.
100 Ibid.
101 Cohen, supra note 81, at 55.
102 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 13 September 1993, [1993] ICJ Rep. 325, at 409, para. 6 (Separate Opinion Lauterpacht). Sir Elihu Lauterpacth’s father, Sir Hersch Lauterpacht, held the exact opposite view, as according to him a ‘level of unreality attaches to the argument, somewhat uncritically repeated with melancholy frequency, that the presence of national judges is essential in order that the bench may be properly informed of the legal and other views of the party to the dispute’. See Lauterpacht, supra note 56, at 236.
103 Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 26 May 1961, [1961] ICJ Rep. 17; Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962, [1962] ICJ Rep. 6.
104 CR 1991/15, at 8.
105 CR 1999/1, at 10.
106 Arts. 26–8 of the Statute.
107 Frontier Dispute (Benin/Niger), Order of 27 November 2002, [2002] ICJ Rep. 613, at 616 (Declaration Oda). See also Oda, S., ‘Further Thoughts on the Chambers Procedure of the International Court of Justice’, (1988) 82 AJIL 556Google Scholar, at 559; Schwebel, S. M., ‘Ad Hoc Chambers of the International Court of Justice’, (1987) 81 AJIL 831CrossRefGoogle Scholar, at 853–4; Merrills, supra note 3, at 146–51; Shaw, supra note 3, at 1104–10.
108 Art. 56(1) of the Statute.
109 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Order of 20 January 1982, [1982] ICJ Rep. 3; Frontier Dispute (Burkina Faso/Mali), Order of 3 April 1985, [1985] ICJ Rep. 6; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Order of 8 May 1987, [1987] ICJ Rep. 10; Frontier Dispute (Benin/Niger), Order of 27 November 2002, [2002] ICJ Rep. 613; Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (El Salvador v. Honduras), Order of 27 November 2002, [2002] ICJ Rep. 618.
110 Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Order of 2 March 1987, [1987] ICJ Rep. 3.
111 See Appendix.
112 Ibid.
113 Ibid.
114 Ibid.
115 Ibid.
116 Judges ad hoc were appointed before the joinder of proceedings. See North Sea Continental Shelf (Denmark/Federal Republic of Germany; Netherlands/Federal Republic of Germany), Order of 26 April 1968, [1968] ICJ Rep. 9.
117 Although Portugal appointed Mr. José Manuel Sérvulo Correia (a Portuguese national) after the provisional measures phase, the Court decided he could not sit, and thus he never was a judge ad hoc in the case. See Legality of Use of Force (Yugoslavia v. Portugal), Judgment of 15 December 2004, [2004] ICJ Rep. 1160, at 1165–7, paras. 9, 16–17.
118 Judges ad hoc were appointed before the joinder of proceedings with Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua). See Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order of 17 April 2013, [2013] ICJ Rep. 184.
119 Judges ad hoc were appointed before the joinder of proceedings with Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua).