In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.
Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case.
Have members of the Court previously taken part in the case?
According to Article 17(2) of the ICJ Statute:
‘no member may participate in the decision of any case in which [s]he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity’ (emphasis added).
Any doubt on this point is settled by the decision of the Court in accordance with 17(3) of the Statute and Art. 34 of the ICJ Rules. This is a common sense provision and there can be no argument as to the wisdom of the principle which underlies it. However, application of this apparently simple rule is not so easy when one considers what is meant by ‘any case’ in which the Judge may not have taken part previously. In the Chagos Archipelago advisory proceedings, are Judges Crawford and Greenwood to be considered as having taken part as counsel for one of the parties and as a member of an international court, respectively, in the case?
‘Any case’ in Article 17(2) seems to refer to the same case currently pending before the Court. Judging ‘sameness’ by means of the triple identity test normally used for lis pendens and res judicata (identity of parties and identity of subject matter and/or cause of action) would mean that part of the provision is rendered almost meaningless. If that test were applied, a member of the Court could only be deemed to have taken part previously in a case currently pending before the ICJ ‘as a member of a national or international court’, if the case decided by the national or international court happened to have reached the ICJ by way of appeal, which is of course extremely unlikely (though previously possible in the limited cases of ICJ review of judgments by administrative tribunals dealing with employment cases, and in the case of appeals from the ICAO Council).
This means that there will have to be some laxer test of ‘sameness’ that needs to be employed. This is confirmed by practice since the days of the PCIJ. In Lotus, for example, the Registrar sought confirmation from Turkey that the Judge ad hoc appointed by Turkey had not taken part in the case concerning the collision of the vessels or the criminal proceedings against the appropriately named Lieutenant Demons of the Lotus (the Judge ad hoc being at the time the President of the Civil Court of Istanbul). In the Case concerning the Arbitral Award of 31 July 1989 a Judge who had taken part in the arbitral proceedings that were the subject of the case recused himself. Notably, however, so did also a Judge who had chaired a commission of inquiry on matters potentially relevant to Phosphate Lands in Nauru. Other Judges have recused themselves on broader grounds, as they are allowed to do under Article 24(1) of the Statute, which provides for some degree of self-regulation by the members of the Court.
Article 24(1) provides that ‘if, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President’; while 24(2) empowers the President to give notice to a member of the Court that ‘the President considers that for some special reason [that member of the Court] should not sit in a particular case’. In case of disagreement between the relevant member of the Court and the President, this will be settled by the decision of the Court in accordance with 24(3). It is the practice of the Court not to strictly differentiate between this provision and that of Article 17: both or either are referred to on occasion, and it is generally accepted that Article 24 does not exclusively refer to issues not covered by Article 17. Interestingly, Article 34 of the Rules of the Court refers to both provisions in one breath.
There is no direct ‘challenge’ that a state may raise regarding the participation of a Judge, though the right of a state to raise the issue is recognised by the Rules of the Court: Article 34(2) of the Rules allows ‘a party’ to confidentially bring relevant matters (‘facts which it considers to be of possible relevance to the application of the provisions of the Statute mentioned in the previous paragraph, but which it believes may not be known to the Court’) to the attention of the President of the Court. Judges have been ‘challenged’ in advisory proceedings before, despite Article 34(2) of the Rules referring to ‘a party’ (of which of course there are none in Advisory proceedings). Judge Elaraby was ‘challenged’ by Israel in the context of the Wall Advisory Opinion, while ‘challenges’ to three Judges were raised also in the context of the Namibia Advisory Opinion by South Africa. In each of these cases the Court decided that the Judges in question had not ‘taken part in the case’, in particular in the context of expressing opinions as representatives of their states in other UN organs.
What emerges from this practice has been usefully summarized by the current Registrar of the Court, Philippe Couvreur, in his commentary to Article 17 of the ICJ Statute (in Zimmermann et al, The Statute of the International Court of Justice: A Commentary (2013) MN 21):
‘[U]ncertainties […] have always arisen in connection with the difficulty of assessing a specific situation in the light of the relatively imprecise language of para. 2 (‘taken part … in any other capacity’). [T]he evidence would seem to suggest that, in order for this paragraph to apply, there must have been ‘participation’ by the individual concerned in ‘the case’ as such, in the sense of a legal dispute, and not merely in the discussion of related issues such as the background circumstances of the dispute or of the applicable rules, and personal and direct participation, involving the expression, in some form or another, of an opinion on the issues posed in the case in question.’ (emphasis added)
So the ‘case’ referred to in Article 17(2) does not have to be the ‘same’ case in terms of a strict triple identity test. Participation in a relevant case, in the sense of direct participation in a legal dispute before a court or a commission of inquiry (and perhaps other methods of dispute settlement—viz ‘in any other capacity’), seems to suffice for Article 17(2) to come into play. Clearly, the cause of action need not be the same. Also, since Article 17(2) refers to national courts, it would seem to be the case that the parties to previous ‘case’ need not be the same as the parties to the inter-state ‘case’ at the ICJ. However, it would appear that the relevant legal dispute must be the same, in the sense that the ‘case’ before the court must raise sufficiently similar issues of law and fact.
Judges Greenwood and Crawford would seem to have participated in ‘a case’ where at least a part of the legal dispute overlaps with the legal questions raised by the advisory opinion requested. Notably, the first claim in the Chagos MPA arbitration was whether the UK was a coastal state with respect to the Chagos Islands, and thus indirectly, but necessarily, raised the issue of whether the UK had sovereignty over the archipelagos. Similarly, the question addressed to the Court by the General Assembly is essentially whether the UK lawfully administers the Chagos Islands and what legal consequences flow from such administration. The question is not identical in terms of subject matter, but it is very close to being so. But there is clearly no identity of parties (as there are no parties in an advisory proceeding), or of cause of action (in fact there is no action). It remains to be seen how the two Judges, and the Court, will deal with this issue.
Appointment of Judges ad hoc
There is one more question relating to the composition of the bench that remains to be addressed: it is the question of Judges ad hoc. The issue would not arise with respect to the UK should Judge Greenwood remain on the bench, but it will arise with respect to Mauritius, who may wish to appoint a Judge ad hoc.
According to Article 68 of the Statute:
‘[i]n the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable’.
The Court has indeed recognised the provisions of Article 31(2) ff of the Statute, which refer to the appointment of Judges ad hoc, to be so applicable in advisory proceedings. Article 102 of the Rules provides in its paragraph 3:
‘When an advisory opinion is requested upon a legal question actually pending between two or more States, Article 31 of the Statute shall apply, as also the provisions of these Rules concerning the application of that Article’ (emphasis added).
Note the subtle wording of the relevant rule, that does not refer to a ‘dispute’ actually pending between states (and cf Eastern Carelia), but rather to a ‘legal question’, though the Court itself has referred on occasion to a ‘dispute’ with which the Advisory Opinion ‘is connected’.
The practice of the Court has not been very consistent with recognising that a particular advisory opinion is requested ‘upon a legal question actually pending between two or more states’, and thus allowing the appointment of Judges ad hoc in advisory proceedings. Notably it refused to do so with respect to South Africa in Namibia, and with respect to Mauritania in Western Sahara, though in that latter case it did allow the appointment of a Judge ad hoc by Morocco, while a Spanish Judge was already on the Bench. Thus far, Western Sahara is the only advisory proceeding where the ICJ has permitted the appointment of a Judge ad hoc. However, the PCIJ did permit such an appointment in several advisory proceedings, though also refusing to do so in other proceedings (see this piece by Eduardo Jiménez de Aréchaga).
If one, for now, sets aside the Court’s inconsistent jurisprudence, it would seem to be the case that the advisory proceedings regarding the Chagos Archipelago touch upon a legal question, even a dispute, actually pending between the UK and Mauritius. This would mean that the Court should allow the appointment of Judge(s) ad hoc, if of course the relevant states so request. However, whether the relevant states would wish to make the request is itself an interesting question. In some ICJ advisory proceedings where there was arguably a legal question pending between two or more participants in the proceedings, such as the Wall Advisory Opinion, the relevant participants did not seek the appointment of a Judge ad hoc. The question faced by Mauritius is one of litigation tactics/strategy. For Mauritius, the state that does not have a judge of its nationality on the bench, to argue that it wishes to appoint a Judge ad hoc is to admit that there is a legal question pending between it and the UK. However, that then comes close to admitting the proceedings relate to a bilateral dispute between it and the UK, the very argument it would be seeking to reject when it argues that the Court should exercise its discretion to hear the advisory proceedings. For the UK, the question of a Judge ad hoc only rises should Judge Greenwood not be involved in deciding on the advisory opinion.