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World Court Digest

III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.3. Judges ad hoc

¤ Legality of Use of Force
(Yugoslavia v. Belgium)
Request for the Indication of
Provisional Measures
Order of 2 June 1999

[pp. D.O. Kreca] 2. The question may be raised whether the respondent States can qualify as parties in the same interest.

In its Order of 20 July 1931 in the case concerning the Customs Régime between Germany and Austria, the Permanent Court of International Justice established that:

"all governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest for the purposes of the present case" (P.C.I.J., Series A/B, No. 41, p. 88).

The question of qualification of the "same interest", in the practice of the Court, has almost uniformly been based on a formal criterion, the criterion of "the same conclusion" to which the parties have come in the proceedings before the Court.

In the present case, the question of "the same conclusion" as the relevant criterion for the existence of "the same interest" of the respondent States is, in my opinion, unquestionable. The same conclusion was, in a way, inevitable in the present case in view of the identical Application which the Federal Republic of Yugoslavia has submitted against 10 NATO member States, and was formally consecrated by the outcome of the proceedings before the Court held on 10, 11 and 12 May 1999, in which all the respondent States came to the identical conclusion resting on the foundation of practically identical argumentation which differed only in the fashion and style of presentation.

Hence, the inevitable conclusion follows, it appears to me, that all the respondent States are in concreto parties in the same interest.

3. What are the implications of this fact for the composition of the Court in the present case? Article 31, paragraph 2, of the Statute says:

"If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge."

The Statute, accordingly, refers to the right of "any other party", namely, a party other than the party which has a judge of its nationality, in the singular. But, it would be erroneous to draw the conclusion from the above that "any other party", other than the party which has a judge of its nationality, cannot, under certain circumstances, choose several judges ad hoc. Such an interpretation would clearly be in sharp contradiction with ratio legis of the institution of judge ad hoc, which, in this particular case, consists of the function "to equalize the situation when the Bench already includes a Member of the Court having the nationality of one of the parties" (S. Rosenne, The Law and Practice of the International Court 1920-1996, Vol. III, pp. 1124-1125). The singular used in Article 31, paragraph 2, of the Statute with reference to the institution of judges ad hoc is, consequently, but individualization of the general, inherent right to equalization in the composition of the Bench in the relations between litigating parties, one of which has a judge of its nationality on the Bench, while the other has not. The practical meaning of this principle applied in casum would imply the right of the Applicant to choose as many judges ad hoc to sit on the Bench as is necessary to equalize the position of the Applicant, and that of those respondent States which have judges of their nationality on the Bench and which share the same interest. In concreto, the inherent right to equalization in the composition of the Bench, as an expression of fundamental rule of equality of parties, means that the Federal Republic of Yugoslavia should have the right to choose five judges ad hoc, since even five out of ten respondent States (the United States of America, the United Kingdom, France, Germany and the Netherlands) have their national judges sitting on the Bench.

[p. D.O. Kreca] 4. ... The meanings of equalization as a ratio legis institution of judges ad hoc, in the case concerning the Applicant and respondent States which are parties in the same interest, and which do not have a judge ad hoc of their nationality on the Bench, have been dealt with in the practice of the Court, in a clear and unambiguous manner.

In the South West Africa case (1961) it was established that, if neither of the parties in the same interest has a judge of its nationality among the Members of the Court, those parties, acting in concert, will be entitled to appoint a single judge ad hoc (South West Africa, I.C.J. Reports 1961, p. 3).

If, on the other hand, among the Members of the Court there is a judge having the nationality of even one of those parties, then no judge ad hoc will be appointed (Territorial Jurisdiction of the International Commission of the River Oder, P.CI.J, Series C No. 17-II, (1929), p. 8; Customs Régime between Germany and Austria, P.C.I.J., Series A/B No. 41, (1931), p. 88).

This perfectly coherent jurisprudence of the Court applied to this particular case, means that none of the respondent States were entitled to appoint a judge ad hoc.