Legal Basis for Ad Hoc Judges - Research Paper Example

Party-selected judges and arbitrators in international legal proceedings: their role, independence, desirability, and compatibility with the general principles of law governing procedure before international tribunals. Introduction International Law is administered by various entities. There are many judicial bodies and institutions that exist to serve this purpose. In this framework, there are instances where parties may elect the persons that will decide the dispute or may refer the issue to an expert who will adjudicate its resolution. Over the years, the use of Ad hoc judges and arbitrators has seen extensive use in the resolution of interstate disputes. With the rising complexity of the interaction of states and other entities becoming more entangled the need for these avenues of settlement becomes apparent. Legal Basis for Ad Hoc Judges Various international legislations exist that provide for the use of the party – elected judges. The foremost instance where ad hoc judges are employed is in the International Court of Justice (ICJ). This international court allows in specific instance parties to elect individuals to the panel that will decide the dispute. “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. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5.” 1 Subsequently, “If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article.”2 These are the two conditions by which parties in disputes before the ICJ may elect judges. The first provision is based on the scenario that the panel that is hearing a case has among its members a judge who shares the nationality of one of the parties. The second provision precludes a scenario where the parties in a dispute have no judge in the panel that will hear their dispute. In this case, they are allowed by the statue to elect judges to the body. This is of course subject to qualifications and requirements in the same statute. It is clear from both provisions that each labor to ensure that the interests of both parties are protected and well represented. Furthermore, this is based on the idea that parties who shares nationality with judges or elected the same would be more subservient to the decision to be handed down by the court. There are also provisions that manifest the use of ad hoc judges in other judicial bodies. “Judges ad hoc shall participate in the case in which they sit on terms of complete equality with the other judges.”3 However, in contrast the use of such is not as extensive as in the ICJ. The ICJ use of ad hoc judges as allowed by its statute has become common practice in most if not all of its cases. Use of Ad Hoc Judges: Application of the ICJ Statute provisions Article 31, sections 1 and 2 of the Stature of the ICJ have been applied in several disputes. Such was he case when of Liechtenstein elected an ad hoc judge in its case against Germany. “A party to an action before the International Court of Justice can appoint an "ad hoc judge” if none of the judges involved are of the same nationality as the party itself. An ad-hoc judge has equal decision-making authority to the other members of the judiciary bench. He has, like the other judges, the authority to act independently in his decisions. The nationality of an ad-hoc judge is not stipulated in the court’s statutes; similarly, appointment of an ad-hoc judge is not obligatory. The Principality of Liechtenstein, however, has exercised its right to do so and chosen the British expert in international law, Professor Sir Franklin Berman from the UK, a public international law authority, as its ad-hoc judge for the proceedings.”4 Liechtenstein, although not required in the proceedings have elected to have an ad hoc judge in the panel that will hear its contention against Germany. This is illustrative of the provision on ad hoc being availed of by parties in cases before the ICJ. The same provision is again made use of in the Case Concerning Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia). “Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Indonesia chose Mr. Mohamed Shahabuddeen and Malaysia Mr. Christopher Gregory Weeramantry.”5 In both instances parties have opted to determine judges who would be among those who will decide the case. And in each instance the provision as well as the procedure prescribed in the ICJ statute has been availed of. It, furthermore, is in line with the idea that when parties submit themselves to the court it includes to its rules and its statute. This is part of the jurisdiction of the court.6 It is consistent with the idea that parties are accorded fairness and equity in the proceedings. And what better way to be manifest that than allowing them a hand in choosing at least 1 of those who will resolve a controversy. Role of Ad Hoc Judges, the Issue of Impartiality Are ad hoc judges different from those who are already serving in the body? Does their role go beyond that of other judges? These are often the questions entertained when the thought of ad hoc judges is raised. There exist concerns that ad hoc judges are not impartial and that their pronouncements are tainted by bias. This attack on their credibility has been disputed in many occasions. The issue is always about impartiality. The right to a fair trial requires judges to be impartial. The right to be tried by an impartial tribunal implies that judges (or jurors) have no interest or stake in a particular case and do not hold pre-formed opinions about it or the parties.7 What is true for the Court as a whole is every bit as compelling for an ad hoc judge. The fact that he is appointed by a party to the case in no way reduces the operative force of his solemn declaration under Article 20 of the Statute, made in the same form as that of the titular judges, that he will exercise his powers impartially and conscientiously.8 At the same time, it cannot be forgotten that the institution of the ad hoc judge was created for the purpose of giving a party, not otherwise having upon the Court a judge of its nationality, an opportunity to join in the work of this tribunal. The evidence in this regard of the attitude of those who participated in the drafting of the original Statute of the Permanent Court of International Justice can hardly be contradicted. This has led many to assume that an ad hoc judge must be regarded as a representative of the State that appoints him and, therefore, as necessarily precommitted to the position that that State may adopt.9 That assumption is, in my opinion, contrary to the principle and cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specific that distinguishes his role. He has, I believe, the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed, him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected - though not necessarily accepted - in any separate or dissenting opinion that he may write. It is on that basis, and in awareness that the tragedy underlying the present proceedings impose on me an especially grave responsibility, that I approach my task.10 Moreover, 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 In both pronouncements, the role and impact of ad hoc judges are brought to light. They are not mere party – elected members of the bench. They are significant contributors to the overall pursuit of justice and the development of international law. In fact, they are burdened to view the case in an alternative perspective and to ensure that the position of the parties are given due to consideration. Aside from that there are even instances that ad hoc judges serve as the bastion of reason and judicial efficacy when the rest of the bench does not see it. When the bench is in error often the ad hoc judges would note of it in their dissent. Judge Buergenthal noted:” to achieve its finding, the court held at the same time that there exists an armed conflict, and that territories are occupied territories of another state, but also and at the same time asserted that Israel has no right to defend itself in that conflict, because there is no other state involved.”12 Even if this was a matter in an advisory opinion its value cannot be denied. It is an example of error made by the bench but was opposed by the ad hoc judge. In these cases, the ad hoc judge though, dissenting, becomes the vanguard of justice in a body that mistakenly distorts it. This leads to the idea that ad hoc judges may, in fact, not be the source of partiality and even the foremost opponent of it. Even if the court is not in error or not shown to be incoherent ad hoc judges still serve an important function. They serve as a source of alternative perspective for the court. These alternative perspectives often are embodied in separate or dissenting opinions. Arbitration Arbitration has significant similarity to the use of ad hoc judges. The main difference is that in Arbitration most of the panel if not all will be determined by the parties. This is manifested in several instances. “The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree.”13 This establishes the difference of Arbitration to International courts. Given that the parties in the dispute elect the majority of the arbitrators. Does this make the resolution of the case less likely? Does it compromise the interests of the parties? These can be answered in the negative. “The parties concluded a separate Arbitration Agreement, whereby the disputes between the parties had to be resolved ‘on the basis of law’ by an ad hoc tribunal of three members.” 14 In this case the parties elect to settle the dispute without the participation of the court. This shows that arbitration is as viable a means to resolve the controversy as the international court system. In terms of qualifications arbitrators are the same with as hoc judges. The appointment of arbitrator(s) is the most important initial step in every arbitration. The identity of the arbitrator(s) invariably will affect the character and quality of the arbitral proceedings and may directly influence the outcome. Any arbitrator — whether a party-appointed member of a panel or the presiding or sole arbitrator — should be selected with a view to his or her legal ability in the field of the dispute, proficiency in the relevant language, and reputation for independence and impartiality.15 This is roughly the same rationale used by state – parties in selecting ad hoc judges. Both ad hoc judges and arbitrators are often challenged by issues of partiality and lack of objectivity. In the case of arbitrators this is not an issue. They were selected by the parties precisely for their orientation and background. As experts their views (including biases) form part of the basis for resolving disputes. On the other hand, ad hoc judges are always challenged to approach cases objectively and with impartiality. It has been contended that their role in the bench is to represent state interests. This is an oversimplification of reality. Ad hoc judges are burdened not only to weigh the issues of the case but also to introduce new perspectives in its assessment. Often courts would neglect issues or commit errors which ad hoc judges will see and try to rectify. When they are unable to alter the outcome of a case, they present a different or dissenting opinion on it. In many instances, they are the one who are left to uphold credibility as well as the efficacy of judicial pronouncements.. The paradox is that ad hoc judges through elected by parties to a dispute concern themselves with not only the interest of the electing party but also of justice. In some cases, the said judicial official acceded to decisions that the party who elected him, or her rightfully lost a claim. This embodies the integrity and impartiality that ad hoc judges possess. Read More