| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.2. | Procedure before a Chamber Dealing with a Particular Case
(Article 26, Paragraph 2, of the Statute) |
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Land, Island and
Maritime Frontier Dispute
(El Salvador/Honduras)
Application to Intervene,
Order of 28 February 1990,
I.C.J. Reports 1990, p. 3
[pp. 4-6] 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.C.J. Reports 1986, p. 3; Elettronica Sicula S.p.A.
(ELSI), I.C.J. 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, l.C.J. Reports 1951, p.
76), applies equally whether the intervention is based upon Article 62 or
Article 63 of the Statute;
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 (Tunisian/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;
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 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.
[pp. 7-8 Decl. Oda] 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 suggesting 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.
[p. 9 D.O. 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.
[pp. 9-10 D.O. Elias] 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, invonceivable 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 exclusive 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 istself.
[p. 10 D.O. Elias] 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 itsell, 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.
[p. 12 D.O. Tarassov] 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).
[pp. 12-13 D.O. Tarassov] 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 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.
[pp. 14-15 D.O. Tarassov] 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
considered 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 impartiality
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 chamber 1. Any
decision of the Court will accordingly establish an important precedent for
future practice.
[pp. 16-17 D.O. Tarassov] 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 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.
[p. 17 D.O. Tarassov] 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 formalistic 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.
[p. 18 D.O. Shahabuddeen] 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.
[p. 19 D.O. Shahabuddeen] 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 circumstances 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 reasonably 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,
Nicaragua 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.
[p. 21 D.O. Shahabuddeen] 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.
[p. 34 D.O. Shahabuddeen] 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.
[pp. 38-39 D.O. Shahabuddeen] 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 Jiménez
de Aréchaga 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 Jiménez de Aréchaga, 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.p.A. (ELSI), Constitution of Chamber (I.C.J.
Reports 1987, pp. 3-4) for the reason that (however it came about) the
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.
[pp. 40-41 D.O. Shahabuddeen] 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
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.
[pp. 47-48 D.O. Shahabuddeen] 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 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.
[p. 48 D.O. Shahabuddeen] 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.
[p. 51 D.O. Shahabuddeen] 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 banc 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 case 2.
[p. 55 D.O. Shahabuddeen] 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.
[pp. 56-57 D.O. Shahabuddeen] 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 differences 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.
[pp. 58-59 D.O. Shahabuddeen] 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 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.
[pp. 60-61 D.O. Shahabuddeen] 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 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.
[pp. 61-62 D.O. Shahabuddeen] 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
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.
| 1 | This 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 elabora-tion 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 Interna-tional Court of Justice (see dissenting opinion of Judge
Shahabuddeen to this Order, p. 21, infra, footnote). |
| 2 | Footnote omitted |
