III. | The International Court of Justice |
1. | FUNDAMENTAL PRINCIPLES |
1.1. | General Questions |
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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. 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.
[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.
[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.