Playing Musical Chairs with International Justice: Evaluating the Appointment of adhoc Judges in ICJ Proceedings

AuthorGavin Lamont Arthur Dingley
Playing musical chairs with international justice: evaluating the
appointment of judges ad hoc in proceedings before the International
Court of Justice
Gavin Lamont Arthur Dingley
Under Article 31 of the Statute of the International Court of Justice, an ad hoc judge may be appointed
by either of the parties before the Court, where they do not have a judge of their nationality on the
Bench. This provision has been heavily criticised as it detracts from the notion of impartiality essential
for justice in the international arena. This paper builds upon this perception by looking at the voting
behaviours of judges in cases where they have been appointed ad hoc and the effect this has had on the
impartiality of the tribunal itself.
The International Court of Justice (‘the Court’) is typically composed of fifteen judges elected to
serve nine-year terms. There is an informal understanding that the Court will maintain an
equitable distribution of judges by geographical region, with Article 9 of the Statute of the
International Court of Justice (‘the Statute’) ensuring that representation on the Bench
encompasses the ‘main forms of civilization and of the principal legal systems of the world.’
norms in the Court are certainly uncontroversial of their own merit, but are compromised by
provisions under Article 31 for the appointment of judges ad hoc.
Such appointments are qualified under Article 31, permissible only in cases where neither o f the
interested State Parties has a judge already sitting at the Court. This mechanism has been both
criticised and lauded. On the one hand, it is seen as an instrument which has contributed to
expanding the scope of the jurisdiction of the Court; on the other, it is charged with having
jeopardised the Court’s impartiality. This essay will explore both sides of this debate, with the aim
of making apparent the irrelevance of the ad hoc judge in the modern legal landscape.
The composition of international courts has been a matter of concern since the advent of the
permanent international judicial body. Allocating seats on the Bench of the International Court
was a compelling reason behind the successive failures in establishing a court at The Hague Peace
Conferences in 1899 and 1907.
By contrast, in some regional ad hoc tribunals, the constitutive
instrument allows each state to have a permanent judge on the Bench of the court.
In these
David D Caron, ‘War and International Adjudication: Reflections on the 1899 Peace Conference’ (2000)
94 American Journal of International Law 4, 2122.
See for example the European Court of Human Rights and the European Court of Justice.

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