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World Court Digest

III. The International Court of Justice
1.1. General Questions

¤ 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.