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)
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 debarying 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.