| 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)
Constitution of Chamber,
Order of 8 May 1987,
I.C.J. Reports 1987, p. 10
[pp. 11-12] Whereas the Special Agreement, according to both
existing translations into the official languages of the Court already referred
to, defines in Article 2 the questions submitted for decision, and provides in
Article 1 that the Parties submit those questions to a Chamber of the Court
composed of three members, and further that in addition, the Chamber shall
comprise two judges ad hoc, who may have the nationality of the Parties;
and whereas the Court understands the Special Agreement as requesting the Court
to form a Chamber to deal with the case in accordance with Article 26, paragraph
2, of its Statute;
Whereas the Parties were duly consulted, on 17 February 1987, as to the
composition of the proposed Chamber of the Court in accordance with Article 26,
paragraph 2, of the Statute and Article 17, paragraph 2, of the Rules of Court;
Whereas the Parties in the course of such consultation confirmed the
indication, given in the Special Agreement, that as regards the number of judges
to constitute such chamber, they approve, pursuant to Article 26 of the Statute,
that number being fixed at five judges, including two judges ad hoc
chosen by the Parties pursuant to Article 31, paragraph 3, of the Statute;
Whereas by a letter dated 7 March 1987 the Minister for Foreign Affairs of
El Salvador notified the Court of its choice of Mr. Nicolas Valticos to sit as
judge ad hoc in the Chamber; and whereas by a letter dated 8 April 1987,
the Agent of Honduras notified the Court of its choice of Mr. Michel Virally to
sit as judge ad hoc in the Chamber; and whereas no objection has been
raised by either Party to the choice of judge ad hoc made by the other,
and no objection to such choice appears to the Court itself;
the Court, unanimously,
- Decides to accede to the request of the Governments of El Salvador and
Honduras to form a special Chamber of five judges to deal with the present case;
- Declares that at an election held on 4 May 1987 Judges Oda, Sette-Camara
and Sir Robert Jennings were elected to form, with the above-named judges ad
hoc, a Chamber to deal with this case, and that accordingly such a Chamber
is duly constituted by the present Order, with the following composition:
Judges Oda, Sette-Camara, Sir Robert Jennings, Judges ad hoc
Valticos, Virally;
[p. 13 Decl. Oda] In the case of a chamber provided for in Article
26, paragraph 2, of the Statute of the Court, the consent of the two parties is
essential and, as that provision clearly states, the number of judges to
constitute such a chamber shall be determined by the Court with the approval of
the parties. At the same time, regarding the composition of the chamber, the
views of the parties shall be ascertained by the President in accordance with
Article 17, paragraph 2, of the Rules of Court. The Court, being sovereign in
judicial proceedings, is free to choose any composition it likes; yet the
possibility must also be borne in mind that sovereign States have the legal
right to withdraw a case if they prefer a composition different from that
determined by the Court. In practical terms, therefore, it is inevitable, if a
chamber is to be viable, that its composition must result from a consensus
between the parties and the Court. To ensure that viability, it accordingly
behoves the Court to take account of the views of the parties when proceeding to
the election. Nevertheless, the chamber is a component of the Court, bound by
its Statute and Rules; and the process of election whereby it comes into being
should be as judicially impartial as its subsequent functioning.
