World Court Digest

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

¤ Case Concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan
(Indonesia v. Malaysia)
Judgment of 17 December 2002

[p. Decl. Oda] 10. The ad hoc judge must always ensure that the appointing State’s arguments are fully addressed by the Court, whether or not they convince the majority of the judges. Between March 1948 (Corfu Channel (United Kingdom v. Albania)) and July 2002 (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)) there have been ad hoc judges in 45 cases and 53 phases of cases before this Court. Of these, 29 have written dissenting opinions, corresponding quite closely to the number of ad hoc judges appointed by losing parties. That, however, does not argue against the integrity of the institution of ad hoc judges. Rather, it demonstrates that, when a State is the losing party, the ad hoc judge it appointed has an even greater obligation to ensure that the Court’s judgment accurately and fully reflects the careful consideration given by the Court to the losing State’s representations. The drafting of the dissent attests to the richness of the Court’s collegial deliberative process.

11. The function of the dissent, therefore, is multiple. It assures the losing party that its arguments, far from being overlooked, were considered extensively by the entire Court. It facilitates the reasoned and balanced exchange of research and written views among the judges during the deliberative process. And, perhaps, it presents to the law’s universal market place of ideas certain principles of law and nuances of analysis which, even if not adopted in the instant case, may be of use in another, as yet unforeseen, context.

12. The ad hoc judge, like any other judge authoring a separate opinion, is accorded a sacred freedom. To be preserved, it must be used. As Judge ad hoc Bula-Bula has written, the ad hoc’s “traditional practice would seem to be characterized by its freedom” (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, separate opinion of Judge ad hoc Bula-Bula, I.C.J. Reports 2002, para. 2). That freedom, of course, quite simply, is to write as one wills: to be the sole author of an opinion, unencumbered by a majority’s need, sometimes, to find common ground through compromise and creative ambiguity.

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