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World Court Digest

III. The International Court of Justice
3.3. Judges ad hoc

¤ Land, Island and
Maritime Frontier Dispute
(El Salvador/Honduras)
Composition of Chamber,
Order of 13 December 1989,
I.C.J. Reports 1989, p. 162

[pp. 171-172 S.O. Shahabuddeen] The right to appoint an ad hoc judge touches the composition of the Court and consequently is directly governed by the Court's constituent instrument, namely, its Statute. Article 31 is the particular provision of the Statute concerned with the process of constituting a person as an ad hoc judge. It does not seem to offer the Court a role at any point in that process, either directly or indirectly through the other provisions referred to in it. The limits of the Court's rule-making power under Article 30 of the Statute (however generously construed) would not enable it, by making Rules of Court, to assume a role in that process not entrusted to it by the Statute. The Statute appears to leave the matter to the State concerned. This would accord with the fact that the institution of ad hoc judges as part of the composition of the Bench of the Court was effectively a limited carry-over from arbitral experience.
In sum, it is difficult to identify any acts of the Court from which an ad hoc judge may be said to derive his authority to act. Though recognizing the force of arguments to the opposite effect, on balance I prefer the view that the appointment of such a judge is constituted by the act of the State concerned in choosing him, the role of the Court being limited to the negative one of determining whether any ground (whether or not going to the validity of his appointment) exists for debarring him from sitting in the case. If this is correct, it leads to the view that the Order made today is not constitutive of an appointment made by the Court but is merely a formal judicial record of an appointment made by the State concerned. I would like in turn to record that it is on the basis of this understanding that I support the Order.