18

DISSENTING OPINION OF JUDGE SHAHABUDDEEN

The ad hoc chamber system established in 1945 by Article 26, para-
graph 2, of the Statute of the Court is a valuable one. I make it clear at the
outset that the burden of this dissenting opinion is concerned not with the
system as so established, but only with certain related procedural arrange-
ments adopted in 1972 and first utilized in 1982. In my view, the Nicara-
guan Application arises from, and illustrates, the existence of certain
problems in these procedural arrangements. If these problems are
resolved, it will be possible for the ad hoc chamber system to exercise the
authority of the Court more credibly and more convincingly than it can at
the moment, and so more effectively fulfil the expectations alike of the
founders of the system as of States which have recourse to it, including
States wishing to exercise their right under the Statute to apply for permis-
sion to intervene in cases pending before such a chamber. To what prob-
lems am I then referring?

Judged objectively and by universally accepted judicial standards, the
selection of its members having been substantially determined or influ-
enced by the Parties under the procedural arrangements referred to, the
Chamber in this case cannot, in my respectful view, discharge the func-
tions of the International Court of Justice, in its character as a court of
justice, in relation to an application by anon-party for permission to inter-
vene in the case pending before it. By itself disclaiming jurisdiction and
instead leaving the Applicant with no recourse except to the Chamber, the
Court effectively denies the Applicant its right to have its Application
under Article 62 of the Statute judicially determined in the ordinary way.
If, as I consider, this is the reality, the legality of the arrangements which
produce so seemingly unacceptable a result would appear to be squarely
in issue, with important questions unavoidably arising as to the funda-
mental nature of the Court itself and its relationship with its chambers. I
have given careful thought to the possibility of discovering some way of
reconciling my thinking on these matters with the position taken by the
Court in the Order made by it today. It is with much regret, courtesy and
respect that I find that I have the misfortune to conclude that the existing
procedural arrangements for forming ad hoc chambers are not valid, but
that, if they are, Nicaragua’s Application for permission to intervene
should have been heard and determined by the full Court. My reasons for
so holding are given in Parts I to VI as to the first point, and in Part VII as
to the second.

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19  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)
PART I. PRELIMINARY
The Court’s Dilemma

The finding of the Court that it is for the Chamber to deal with Nicara-
gua’s Application is based essentially on the ground that the Chamber was
formed to deal with the particular case and must also deal with proceed-
ings incidental to it. In the normal case, I would agree. But, in the circum-
stances of this case, is the decision as logical as the Court suggests ? Under
the Court’s own Rules, as amended in 1972 and revised in 1978, apart
from two of the five members of the Chamber being ad hoc judges
appointed as of right by the existing Parties, the remaining three were
elected by the full Court to the Chamber after the Court had taken into
account the views of the existing Parties as to the particular Members of
the Court who should be so elected. Whether it is in fact so or not — and it
is the Court which knows best — the Applicant is entitled to, and, as
appears from its Application and written arguments, clearly does, enter-
tain a reasonable apprehension that the three Members so elected were
elected in conformity with the expressed wishes of the existing Parties. In
substance, therefore, the Applicant is being told by the Court that it has no
option but to submit to a Chamber all of whose five members it is reason-
ably entitled to feel have been practically hand-picked by the existing
Parties. Conceivably, Nicaragua may nevertheless accept that option and
go to the Chamber, and, if it does so, its Application may conceivably be
granted by the Chamber. However, this possibility cannot affect the legal
situation, as I see it. For it is not difficult to see why Nicaragua has not so
far gone to the Chamber and why it has in fact come to the full Court — an
attitude which is in itself the first practical illustration of how far an inter-
ested non-party State is likely to regard such a chamber as a legitimate
manifestation of the Court. When its presentation is fairly read, Nicara-
gua obviously takes the view that the Chamber, as it stands, cannot dis-
charge the functions of the International Court of Justice, considered as a
court of justice, in relation to itself. That that is the central issue, inescap-
ably presented, seems plain to me. Without first dealing with that issue, it
is, in my view, logically impossible to make an intelligent appreciation of
the problems raised by Nicaragua’s Application.

I have nevertheless asked myself whether it could persuasively be said
that this is not the appropriate moment to consider the matter. However, if
it is not, I have difficulty in seeing what moment will be appropriate so
long as the system continues to operate. On the other hand, should the
system cease to operate, it could hardly then be judicially appropriate to
consider the matter: it would have become academic. Passivity at this
stage is not a guarantee against the occurrence of other and possibly
graver problems yet to come, for the implications of the new system cut so
deep and run so wide as inevitably to surface one day or another as an
issue demanding not to be ignored. I believe that day has come. To fail to

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20 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

consider the matter now would be but sad proof of the common observa-
tion that an innovation, once allowed, gathers momentum which progres-
sively subdues any inclination to inquire, sometimes to the point of
producing misgiving that the very assertion of a right to do so might
be received with surprise and disbelief. Often, indeed, it is the law which
reconciles itself to reality. Still, cases may arise in which that reconcilia-
tion cannot be made — cases, for example, in which the application by
the Court of a text taken at its received face value yields a result so
deeply offensive to basal norms of justice as to make it impossible for the
Court responsibly to avert its gaze from the necessity to examine the foun-
dations of the system which leads to that result. It seems to me that here
is such a case.

Ina highly regarded statement the Court some three decades ago enun-
ciated the reassuring and important principle that the “Court itself, and
not the parties, must be the guardian of the Court’s judicial integrity”
(Northern Cameroons, I.C.J. Reports 1963, p. 29). If, as I believe, this was
not mere judicial rhetoric, that duty rests throughout with the Court and
must be discharged by it whether or not invoked by a party (Legal Conse-
quences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
LCJ. Reports 1971, p. 323, per Judge Gros, dissenting). No doubt, the
Court is not required gratuitously to examine problems which are not
fairly raised by the circumstances of a case. But I cannot think that that is
the situation here.

The problem in this case is, of course, of an institutional character: I
state most distinctly that it has nothing whatever to do with the integrity of
the very distinguished members of the Chamber. However, it does have
everything to do with fundamental concepts of justice. The leading prin-
ciple, and its applicability to this Court, are not, I think, in doubt. It was
cited by Judge Lachs in an admirable reassessment of his earlier stand on
the question whether an applicant for permission to intervene should have
been heard even if its application was inadmissible. As he recalled, “It is,
after all, ‘of fundamental importance that justice should not only be done,
but should manifestly and undoubtedly be seen to be done’ (Lord Hewart
in The King v. Sussex Justices, ex parte McCarthy, 1 K.B. [1924], pp. 256
and 259)” (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America) (I.C.J. Reports 1986, p. 171). That
principle goes to the root of the claim of the Court to be considered as a
court of justice. This being so, the duty of the Court, as the avowed guard-
ian of its own integrity, to consider the implications of that principle in
this case does not depend on whether the principle has been specifically
invoked by the Applicant: it depends on whether it is presented by the
facts themselves. I think it is. As it happens, however, the concern of the
Applicant on the point is apparent both from its Application and from its

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21  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

written arguments as presented in the letter to the Registrar from its Agent
of 1 February 1990: the Applicant clearly considers — and this indeed is
the heart of its contention — that the methods by which the Chamber has
been formed do not allow it to function as a court of justice in relation to
the Applicant’s case.

The vice, then, in which the Court is held is this. Regardiess of ultimate
results, the Applicant has a right under Article 62 of the Court’s Statute to
apply for permission to intervene. However, while closing its own doors to
the Applicant, the full Court is unable, in my view, to indicate any judi-
cially acceptable alternative forum to which the Applicant may turn. In
consequence, the Applicant is effectively denied its right to have its Appli-
cation for permission to intervene judicially considered.

If, as I think, this is the dilemma in which the Court is caught, I am not
able to see how it could be possible to avoid examining the legality of the
arrangements from which that dilemma springs!. The line between judi-
cial restraint and judicial abdication has to be observed if a judge’s judi-
cial mission is to be fulfilled. For myself, I fear it would be a transgression
of that line to remain silent on the point. The justice of the case leaves me
no defensible way in which I can avoid dealing with it. I proceed accord-
ingly to consider it below. I am conscious of the length of that which
ensues and can only hope that the importance of the matter furnishes
some justification.

! The issue has been the subject of individual statements, made mostly out of Court,
by a number of past and present Members of the Court, and from these I have benefited
greatly and gratefully. See Judges Oda, Morozov and El Khani in the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Aera, I.C.J. Reports 1982,
pp. 10, 1i and 13 respectively; Eduardo Jiménez de Aréchaga, “The Amendments to the
Rules of Procedure of the International Court of Justice”, American Journal of Interna-
tional Law, 1973, Vol. 67, p. 1; B. A. S. Petrén, “Some Thoughts on the Future of the
International Court of Justice”, Netherlands Yearbook of International Law, 1975, Vol. 6,
p.59; Mohammed Bedjaoui, “Remarques sur la création de chambres ad hoc au sein de
la Cour internationale de Justice”, Société frangaise pour le droit international, Col-
loque de Lyon, La juridiction internationale permanente, Paris, Pedone, 1987, pp. 73-78;
Mohammed Bedjaoui, “Universalisme et régionalisme au sein de la Cour internationale
de Justice : La constitution de chambres ad hoc”, Liber Amicorum, Coleccion de Estudios
Juridicos en Homenaje al Prof. Dr. D. José Pérez Montero, Universidad de Oviedo, 1988,
p. 155; Stephen M. Schwebel, “Ad Hoc Chambers of the International Court of Justice”,
American Journal of International Law, 1987, Vol. 81, p. 831; Stephen M. Schwebel,
“Chambers of the International Court of Justice Formed for Particular Cases”, in Y.
Dinstein (ed.), International Law at a Time of Perplexity, 1989, p. 739 ; Shigeru Oda, “Fur-
ther Thoughts on the Chambers Procedure of the International Court of Justice”, Amer-
ican Journal of International Law, 1988, Vol. 82, p. 556; T. O. Elias, The United Nations
Charter and the World Court, Lagos, 1989, pp. 16 and 203 ff.; and Hermann Mosler, “The
Ad Hoc Chambers of the International Court of Justice : Evaluation after Five Years of
Experience”, in Dinstein, op. cit., p. 449.

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22  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

The Issues

The principal point concerns the operation of Article 17, paragraph 2,
of the 1978 Rules of Court, which requires the President of the Court to
ascertain and report to the Court the views of the parties regarding the
composition of an ad hoc chamber before the Court elects Members of the
Court to be members of the chamber to hear the particular case. It is not in
question that, as Nicaragua has pointedly recalled, the intention was that,
in those views, the parties were to be free to indicate “exactly which indi-
vidual judges they desire on the Bench for that case” (Edvard Hambro,
“Will the Revised Rules of Court Lead to Greater Willingness on the Part
of Prospective Clients ?”, in Leo Gross (ed.), The Future of the International
Court of Justice, 1976, Vol. 1, p. 368, cited in the letter to the Registrar from
the Agent for Nicaragua of 1 February 1990). Does this arrangement open
the door to an invasion by the parties of the proper province of the Court?

The available material shows beyond doubt that the framing of Ar-
ticle 17, paragraph 2, of the Rules of Court 1978 (in substance Article 26,
paragraph 1, of the Rules of Court as amended in 1972) was motivated
by a desire “to accord to the parties”, in the words of one of its principal
architects, “a decisive influence in the composition of ad hoc Chambers”
(Eduardo Jiménez de Aréchaga, loc. cit, p. 2; and see ibid. p. 21).
The interesting mechanics employed in the case concerning Delimitation of
the Maritime Boundary in the Gulf of Maine Area, Constitution of Chamber
(L.CJ. Reports 1982, p. 3) only served to highlight the lengths to which this
purpose could go. In that case, the parties made it unmistakably clear to
the Court that the litigation would not proceed unless the selection, as well
as the timing of the selection, of members of the chamber conformed in
every material detail to their expressed wishes. And the Court did exactly
as was required. It is scarcely worthwhile to seek to put a gloss on this as
being other than the practical result of the plainly promulgated will of the
parties. Is this speculation? Here is the declaration made by Judge Oda:

“While I voted in favour of the Order, it should in my view have
been made known that the Court, for reasons best known to itself, has
approved the composition of the Chamber entirely in accordance
with the latest wishes of the Parties as ascertained pursuant to Ar-
ticle 26, paragraph 2, of the Statute and Article 17, paragraph 2, of
the Rules of Court.” (Zbid., p. 10.)

The choice of language employed in Article 26, paragraph 1, of the
Rules of Court 1972 might have led, on the one hand, to some obscuring of
the possibility of the new provision being pressed to the extent to which it
was later pressed in the Gulf of Maine case, and might, on the other hand,
have been thought to leave open the possibility of an answering argument
that notification of the views of the parties to the Court still left the Court

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23 DISPUTE (EL SALVADOR/ HONDURAS) (DISS. OP. SHAHABUDDEEN)

with the final say on selection of personnel, as indeed it did: the Court can
elect judges other than those proposed by the parties. But, to adopt the
words of Judge Gros, an approach of this kind may not unfairly be
regarded as resting on the “supposition that words can be used to suppress
a problem rather than deal with it” (Delimitation of the Maritime Boundary
in the Gulf of Maine Area, I.C.J. Reports 1984, p. 368). Delicacy in legisla-
tive formulation could not really conceal the fact that one way or another
the parties were being conceded a substantial, if not indeed a “decisive”,
say in the selection of particular judges, for it could not be supposed that
they were being accorded a right to express views which the Court was
free entirely to disregard. Judge Jiménez de Aréchaga’s statements leave
no room for doubt on the point. Neither do those of Judge Petrén
(B. A. S. Petrén, loc. cit., p. 64).

Leaving aside the question of effective dictation, the question which
arises — and it is desired to emphasize that this is the question — is
whether the new Rules could, consistently with the Statute of the Court
and the Charter of the United Nations, confer on the parties to a case a
right to influence the election of regular Members of the Court to sit on an
ad hoc chamber of the Court to hear and determine that particular case.
For it is possible to grant the good faith of, and even to commend — as I do
— the intention to promote the use of the Court, while respectfully asking
whether the steps taken in pursuance of that intention resulted in the cre-
ation of a body different from any chamber authorized by the Statute. True,
as was observed in 1972 by the then President of the Court, “there is
nothing sacrosanct about the International Court of Justice itself in its
present form and structure” (President Sir Muhammad Zafrulia Khan,
speaking on the occasion of the fiftieth anniversary of the World Court,
CJ. Yearbook 1971-1972, p. 139). As he noted, within the Court’s Statute
provision already existed, though not up to then utilized, for the appoint-
ment of ad hocchambers. Clearly, however, if something was to be done to
encourage use of that mechanism, it would be necessary to bear in mind
that, while there might be nothing sacrosanct about the Court itself in its
then form and structure, if that form and structure were in consequence to
be changed, the prescribed procedure for effecting the change should be
employed.

In addition to the foregoing question of constitutionality, a second and
a third question consequentially arise. The second question concerns the
validity of the amended Rules of Court in so far as they seek to give a judge
elected to an ad hoc chamber a tenure which is greater than that of a judge
not so elected. The third question concerns the power of the Court to
reverse its previous decisions on the right of parties to influence the com-
position of ad hoc chambers, and to discontinue the practice which those
decisions initiated. The first question is examined in Parts IT and III. The
second and third questions are examined in Parts IV and V respectively.
Part VI sets out the general conclusions as to the status of the existing
arrangements relating to ad hoc chambers. Part VII considers the Nicara-

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24 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

guan Application on the assumption that the existing Chamber is validly
constituted.

Limits of the Court’s Rule-Making Power

In a general sense, the matter turns on the limits of the rule-making
power of the Court, and this aspect may accordingly be taken up in this
Preliminary Part. Article 30, paragraph 1, of the Statute reads : “The Court
shall frame rules for carrying out its functions. In particular, it shall lay
down rules of procedure.” Changes made in 1945 in the English text of the
corresponding provision of the Rules of Court of the Permanent Court of
International Justice were only intended to bring it into harmony with the
previous French version (see Manley O. Hudson, “The Twenty-Fourth
Year of the World Court”, American Journal of International Law, 1946,
Vol. 40, p. 28; and P.C.I.J., Series D, Third Addendum to No. 2, report by Sir
Cecil Hurst, p. 758). Accordingly, recourse may be had to the learning
relating to the earlier provision in elucidating the meaning of the existing
provision. As a matter of necessity, the power conferred by the earlier pro-
vision was used to fill certain lacunae in the Statute (Manley O. Hudson,
The Permanent Court of International Justice, 1920-1942, New York, 1943,
p. 275). It could also cover questions of internal organization of the Court
(ibid., p. 270). And, no doubt, within any applicable limitations, the Court
was free to determine the content of its Rules. It is not in issue, however,
that —

“[tlhe chief object with which rules of procedure are made is to
inform those who are responsible for the conduct of a case before the
Court what steps have to be taken, and when and how, for the pur-
pose of submitting that case to the decision of the Court” (report by
Sir Cecil Hurst, Joc. cit.).

It seems:safe to assume that, as regards ad hoc chambers, the existing
Statute left no lacunae which might require remedial exercise, on grounds
of necessity, of the rule-making power of the Court. In this case, nothing
was being filled in: something was being changed. Previously the selec-
tion of serving judges to be members of an ad hoc chamber rested with the
Court to the strict exclusion of the parties. That was undoubtedly the legal
position. And it was a position which involved no gaps waiting to be filled
before the established mechanism could legally function (see René-Jean
Dupuy, “La réforme du Réglement de la Cour internationale de Justice”,
Annuaire francais de droit international, 1972, Vol. XVIII, p. 270). What
was undertaken in 1972 was a modification of that mechanism with a view
to making it more attractive to potential users. That did not involve the
filling in of any legal lacuna. Nor could it be said that the change made
could be justified as an exercise of the rule-making power of the Court in

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25 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

relation to matters of its internal organization. That power, as generally
understood, does not comprehend power to confer rights on external enti-
ties over the Court’s internal organization. The residual question then is
whether the change could be justified as an exercise of the rule-making
power in relation to litigation procedure.

To the question thus stated, the answer seems plainly “No”. Neverthe-
less, it is proposed to examine the question, first, from the point of view of
consistency of the character of an ad hocchamber, as modified by the new
Rules, with the substantive character of the Court as visualized by the
Charter and laid down by the Statute, and, second and more specifically,
from the point of view of consistency of the new Rules with the controlling
provisions of Article 26 of the Statute. These two areas are dealt with in
Parts II and III respectively.

PART II. CONSISTENCY OF THE CHARACTER OF AD Hoc CHAMBERS
AS MODIFIED BY THE NEW RULES WITH
THE CHARACTER OF THE COURT

The single most important question in this matter is to what extent, if
any, did the constitution of the Court visualize that parties to a case could
have any influence in determining which Members of the Court should sit
in that case. An understandable predisposition to assume a general right
to exert some such influence is observable in the case of an international
tribunal, as distinguished from a municipal court; and that predisposi-
tion, in a measure, probably underlies attitudes favourable to the new
arrangements. But the precise answer to the question posed in the case of
this particular Court must turn, I believe, on the exact juridical character
of the Court and, by extension, of its chambers. In this respect, it seems to
me that the essential distinction is that alluded to by Nicaragua in its refer-
ence to “the institutional conception of the Court as a judicial organ —
and not one of arbitration . . .” (letter to the Registrar from the Agent for
Nicaragua, 1 February 1990). I believe that distinction can bear retracing
and emphasis.

That the Court is a court of justice is obvious. Yet it may be that in that
very obviousness lurks a danger that the primal considerations involved
may be taken for granted. So it is proposed to revisit briefly the historical
character of the Court, not only with the object of regaining a feel for the
real nature of the Court, but also with a view to determining whether the
original concept still has validity, and, if it has, what are the limits of toler-
able derogations from the norm. It is particularly important to do this for
the reason that, although it would be wrong to view an international court
of justice as if it were a carbon copy of a municipal court of justice, it
would be equally misleading to suppose that there is a total absence of

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26 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

analogy in respect of the basic elements of the concept of a court of
justice.

The well-worn distinction between an arbitral tribunal and a court of
justice need not be recited (see inter alia James Brown Scott, The Status of
the International Court of Justice, 1916, p. 24). There was, indeed, some
early concern with the question whether the Permanent Court of Interna-
tional Justice could be regarded as an arbitral body if it was competent to
adjudicate on purely political disputes as distinguished from legal dis-
putes involving political features (see Secretariat of the League of
Nations, “Memorandum on the Different Questions Arising in Connection
with the Establishment of the Permanent Court of International Justice,
Appendix”, set out in Permanent Court of International Justice, Advisory
Committee of Jurists, Documents Presented to the Committee Relating to
Existing Plans for the Establishment of a Permanent Court of International
Justice, 1920, p. 115). But that possibility does not appear to have been
seriously pursued and need not detain inquiry : the Court does not regard
itself as competent to decide questions not governed by legal principles
(see inter alia Judge Kellogg’s observations in the case of the Free Zones of
Upper Savoy and the District of Gex, P.C.I.J., Series A, No. 24, pp. 29-34; the
Certain Norwegian Loans case, I.C.J. Reports 1957, p. 66, per Judge Lauter-
pacht; and the case concerning Border and Transborder Armed Actions
(Nicaragua v. Honduras), I.C.J. Reports 1988, p. 91, para. 52). The whole
evolution of the thinking leading to the creation of the Permanent Court
disclosed a settled intention to create a court of justice in the sense gen-
erally understood in municipal law. A principal feature of the new body
was that its judicial personnel were to be preordained: unlike an arbitral
body, particular judges were not to be selected by the parties for particular
cases.

In one way or another this important point was repeatedly hammered
home. Its essentials were to be found in the justly famous instructions
issued by Secretary of State Elihu Root to the United States delegation to
the 1907 Hague Conference (see Secretary of State Elihu Root to Mr. J. H.
Choate and others, in James Brown Scott (ed.), Instructions to the Ameri-
can Delegates to the Hague Peace Conferences and Their Official Reports,
1916, pp. 79-80. The instructions were quoted in part by Judge Kellogg in
the case of the Free Zones of Upper Savoy and the District of Gex, loc. cit.,
pp. 36-37). The principle was affirmed in the course of the proceedings of
the Advisory Committee of Jurists, 1920. The Committee clearly accepted
the understanding of the League of Nations Secretariat that the new
Court, as visualized by Article 14 of the Covenant, would “be a Court of
Justice in the technical and restricted meaning of the term. Its character
would be similar . . . to that of the Courts of Justice of the different coun-
tries” (“Note on the Nature of the New Permanent Court of International
Justice”, in Documents, op. cit., p. 113; and see, ibid., p. 7). The continu-
ance of the Permanent Court of Arbitration side by side with the new

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27  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

Court — and indeed in the same building, as is still the case — was
regarded as confirmatory of “the conclusion that the new Court will be in
principle a Court of Justice” (Documents, op. cit., p. 115). The coexistence
of the Permanent Court of International Justice with the Permanent Court
of Arbitration and other tribunals of arbitration was expressly recognized
in Article 1 of the Statute of the Court reading:

“This Court shall be in addition to the Court of Arbitration organ-
ized by the Conventions of The Hague of 1899 and 1907, and to the
special Tribunals of Arbitration to which States are always at liberty
to submit their disputes for settlement.”

Parties could always go to arbitration. Now, on a potentially global basis,
they were being given a choice between that and a new piece of machinery
— a court of justice (see also B. C. J. Loder, “The Permanent Court of
International Justice”, in Report of the Twenty-Ninth Conference of the
International Law Association, London, 1920, p. 148).

M. Léon Bourgeois, the distinguished and learned delegate of the
Council of the League of Nations, alluded to these ideas when, addressing
the inaugural meeting of the Committee of Jurists on 16 June 1920, he
said:

“The Court of Justice must be a true Permanent Court. It is not
simply a question of arbitrators chosen on a particular occasion, in
the case of conflict, by the interested parties; it is a small number of
judges sitting constantly and receiving a mandate the duration of
which will enable the establishment of a real jurisprudence, who will
administer justice. This permanence is a symbol. It will be a seat
raised in the midst of the nations, where judges are always present, to
whom can always be brought the appeal of the weak and to whom
protests against the violation of right can be addressed. Chosen not
by reason of the State of which they are citizens, but by reason of their
personal authority, of their past career, of the respect which attaches
to their names known over the whole world, these judges will repre-
sent a truly international spirit which is by no means, as some people
pretend, a negation of the legitimate interests of each nation, but
which is, on the contrary, the safeguard of these interests, within the
very limits of their legitimacy.” (Permanent Court of International
Justice, Advisory Committee of Jurists, Procés-Verbaux of the Pro-
ceedings of the Committee, June 16th-July 24th 1920, with Annexes, The
Hague, 1920, pp. 7-8.)

The Report of the 1920 Advisory Committee of Jurists in turn stated:

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28 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

“In the Court of Arbitration, it falls to the parties to choose their
judges, after the commencement of the dispute; whereas in the case
of the Permanent Court of International Justice, the contesting part-
ies no longer have the choice of the judges.” (“Report of the Advisory
Committee of Jurists”, Annex No. 1 to the Procés-Verbaux, op. cit.
p. 695.)

Then, after referring (p. 696) to M. Bourgeois’s opening speech, the
Report added:

“In contradistinction to the Court of Arbitration, the Permanent
Court of International Justice will really deserve its name, as it will
consist of judges, who will continue to sit from one case to another;
the parties will not have to choose them for this purpose, and with
one exception, which will be dealt with later in connection with sum-
mary procedure, the parties may not fix the number of judges.” (Jbid.,
p. 698.)

The exception seemingly referred to draft Article 26 of the Statute read-
ing:

“With a view to the speedy despatch of business the Court shail
form, annually, a chamber composed of three judges who, at the
request of the contesting parties, may hear and determine cases by
summary procedure.” (Ibid., p. 719.)

The parties could fix the number of judges only in the sense of opting for
this chamber with its prefixed membership of three.

How was all of this understood when the new Court was eventually
established? Addressing the Court on 15 February 1922 on the occasion
of its official opening, the Dutch Foreign Minister, M. Van Karnebeek,
said:

“Your responsibility is the greater because the States, who will
have recourse to you for justice, will have renounced the right of
freely choosing their judges, an outstanding feature of the system of
arbitration which exists side by side with you under this roof.”
(P.C.LJ,, Series D, No. 2, p. 322.)

To which President Loder agreeably replied:

“The jurisdiction of this Court differs from arbitration. The judges
are no longer to be nominated by the parties. They form a permanent
Court.

The procedure has no longer to be framed; it is laid down in the
Statute and in the Rules of Procedure.

The two institutions exist side by side; each fulfils its special duty;
each possesses its own sphere of action; both live peacefully together
in this same building, like an older and a younger sister.

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29  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

Is the younger organisation perfect? Will its Statute never require
amendment? Nothing is perfect in the hour of its birth. Here also the
law of evolution will make itself felt.” (P.C.I.J., Series D, No. 2,
pp. 329-330.)

So the structure of the institution could be changed and might need to be
changed. But, meanwhile, its character was that of a court of justice as
ordinarily understood. In the light of that character, it is not difficult to
imagine what might have been President Loder’s reaction to a change
sought to be brought about by an amendment to the Rules of Court for the
purpose of giving the parties “a decisive influence” in the selection of
regular judges of the Court to sit on a chamber established under its
Statute, even as recast for the present Court in 1945.

This aspect may be summed up with these observations of Judge Kel-
logg in the case concerning the Free Zones of Upper Savoy and the District
of Gex:

“It is evident from a consideration of the circumstances which
called for the creation of this Court and the history of its organiza-
tion, as well as from a careful examination of the Court’s Statute,
framed by a special committee of jurists appointed by the Council of
the League of Nations, that this tribunal is a Court of justice as that
term is known and understood in the jurisprudence of civilized
nations.” (P.C.LJ., Series A, No. 24, p. 33.)

The idea that the Court was a court of justice in contradistinction to
being an arbitral body formed the ground of opposition to two important
features, namely, that relating to chambers and that relating to ad hoc
judges. Although in both cases the desired provisions were made, the
material leaves little room for doubt that the basic judicial character of the
Court was intended to prevail throughout its arrangements and function-
ing, save in respect of variations clearly authorized by the Statute itself.

As regards the idea of chambers, speaking in the Advisory Committee
of Jurists in 1920, Lord Phillimore framed his opposition this way:

“The idea of 1907 to divide the Court into chambers, also is too
closely bound to the idea of arbitration, since these chambers would
be formed in casu. The Court must sit in pleno to be a real Court of
Justice ... the number of judges was of secondary importance; the
essential thing was that as far as possible all judges should sit at the
same time.” (Procés-Verbaux, op. cit., 1920, p. 175.)

Referring to the proceedings of the 1920 Committee, Judge Hudson later
wrote:

“No basis for excluding some members of the Court from sitting
was found, and as the debate progressed the 1920 Committee of Jur-
ists came to the view that the unity of the Court required that it should

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30  DISPUTE (EL SALVADOR/ HONDURAS) (DISS. OP. SHAHABUDDEEN)

always sit in pleno; its proposal to this effect was embodied in the text
as adopted.” (Hudson, The Permanent Court of International Justice,
1943, pp. 173-174.)

The establishment of chambers was conceded as an exception to this
primary rule. As was noted by Lord Finlay, Article 25 of the Statute

“laid down that the full Court should sit except when expressly
provided otherwise. These exceptions were specially dealt with in
Articles 26 and 27 of the Statute” (P.C.IJ., Series D, No. 2, 11 Feb-
ruary 1922, p. 28).

He accepted that the “Statute should be interpreted broadly”, but would
scarcely have thought this a sufficient warrant for the Court to act through
chambers composed otherwise than as expressly authorized by the Statute
itself.

In this connection, a point of some interest is that, whereas Article 25 of
the 1920 Statute read, “The full Court shall sit except when it is expressly
provided otherwise”, Article 25 of the present Statute, while retaining
those words, prudentially added the words, “in the present Statute” (Doc-
uments of the United Nations Conference on International Organization,
San Francisco, 1945, Vol. XVII, p. 412, Sixth Meeting of the Advisory
Committee of Jurists, 12 June 1945). The official records do not show the
reason for the change, which Judge Hudson was probably right in charac-
terizing as “merely stylistic” (Manley O. Hudson, “The Twenty-Fourth
Year of the World Court”, American Journal of International Law, 1946,
Vol. 40, pp. 24-25). But, while no change of substance was involved, it
would seem clear that the stylistic change made was inspired by the
thought of bringing out and emphasizing an original principle of pre-
eminent importance, namely, that exceptions to the general rule that the
full Court should always sit had to be authorized by express language in
the Statute itself. Exceptions could not be added by Rules of Court.

The question is: Can it be said that an ad hoc chamber, as constituted
under the new Rules of Court, falls within an exception which is expressly
authorized by the Statute itself to the dominant rule that the Court should
sit in pleno?

As regards ad hocjudges, here too, as is well known, the opposition was
mounted on the basis that the appointment of such judges was more
appropriate to arbitral tribunals than to courts of justice. The 1920 Com-
mittee of Jurists was, of course, aware of possible objections. Referring to
a hypothetical case in which both sides had appointed an ad hoc judge, its
Report stated:

“In this particular, our Court more nearly resembles a Court of
Arbitration than a national Court of Justice. But this variation is
necessary. Though our Court is a true Court, we must not forget that
it-is a Court between States. For the reasons already given, States
attach much importance to having one of their subjects on the Bench

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31  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

when they appear before a Court of Justice.” (“Report of the Advi-
sory Committee of Jurists”, 1920, loc. cit., p. 722.)

The Report thus recognized the substance of the point made by M. Loder
when he said: “If the right to choose such judges were given to the parties,
this would give the proceedings a characteristic essentially belonging to
arbitration.” (Procés-Verbaux, op. cit., p. 531. See also, ibid., pp. 169-170;
and B. Schenk von Stauffenberg, Statut et Réglement de la Cour perma-
nente de Justice internationale, Eléments d’interprétation, Berlin, 1934,
pp. 181-182.)

Thus, although it was agreed to allow ad hoc judges, it was appreciated
that this arrangement evinced an arbitral aspect which was not quite in
harmony with the fundamental judicial character of the Court as a court
of justice. The arrangement had to be fought for and justified on very spe-
cial grounds (see “Report of the Advisory Committee of Jurists”, 1920,
loc. cit., p. 721; the remarks of Lord Phillimore in Procés-Verbaux, op. cit.,
p. 528, and of Mr. Adatci, ibid., p. 529; the remarks of Judge Altamira on
23 June 1926, in P.CI.T. Series D, Addendum to No. 2, p. 26; the “Report
Presented by the French Representative, M. Léon Bourgeois, and
Adopted by the Council of the League of Nations at Its Meeting at Brus-
sels on October 27th, 1920”, in League of Nations, Permanent Court of
International Justice, Documents concerning the Action Taken by the Council
of the League of Nations under Article 14 of the Covenant and the Adoption
by the Assembly of the Statute of the Permanent Court, p. 48; and the Regis-
trar’s statement in 1932 in P.C_LJ., Series D, Third Addendum to No. 2, p. 18,
footnote). And these special grounds are no doubt still valid. But a fair
interpretation is that the idea of selection of judges by the parties, which
that arrangement involved, was not intended to be extended to cases not
clearly authorized by the Statute, whether by express language or by
necessary implication.

How alien to the concept of a court of justice — even an international
court of justice — is the notion of parties nominating its members, may be
gathered from the grounds on which a proposal was made and rejected in
the 1920 Committee of Jurists for members of a chamber of the Permanent
Court of International Justice to be designated by the parties (Procés-Ver-
baux, op. cit., pp. 183-184, 517, 524). M. Ricci-Busatti’s written proposal to
that effect was expressly prefaced with the statement that the “Court of
Justice should be connected as intimately as possible with the Court of
Arbitration, the functions of which it merely develops” (ibid., p. 183). The
summary record of the related discussions not surprisingly showed that,
in his presentation, ;

“M. Ricci-Busatti personally started from an entirely different
conception: he maintained his point of view that too much distinc-
tion should not be drawn between the new Court and the old Court of

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32 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

Arbitration; that there was no essential difference, especially in inter-
national relations, between Arbitration and strict Justice” (Procès-
Verbaux, op. cit., p. 177).

So his proposal was frankly arbitral in character. M. Loder (with whom

M. de Lapradelle agreed) in consequence had little difficulty in securing

its rejection on the ground that, contrary to M. Ricci-Busatti’s conception,

the Court was indeed intended to be a court of justice (ibid., p. 178; see

also, ibid., p. 526; and James Brown Scott, The Project of a Permanent
Court of International Justice and Resolutions of the Advisory Committee of
Jurists, Report and Commentary, 1920, pp. 27-28). Once the latter view of
the character of the Court was upheld, as it was, the proposal was bound

to fall. Using language uncannily anticipatory of some used in reference

to the new Rules, M. Ricci-Busatti had urged that “it was desirable to

allow the Parties, either directly or through the President, to have a certain

influence on the composition of the section” (Procés-Verbaux, op. cit.,

p. 526). The idea did not find favour, M. Loder and Baron Descamps, the

President of the Committee, pointing out “that this method would too

much resemble that proper to arbitration” (ibid.). Can it be said that the

juridical character of the present Court is so signally different from that of
its predecessor as to justify acceptance now in place of rejection then?

Far from there being any difference, the present Court has repeatedly
affirmed, in relation to itself, the substance of earlier pronouncements by
its predecessor about its status as a court of justice. Despite some initial
doubt as to the precise juridical relationship between the Permanent
Court, in its advisory role, and the Council of the League of Nations, as
early as 1923 the Court had occasion to observe that the “Court, being a
Court of Justice, cannot, even in giving advisory opinions, depart from the
essential rules guiding their activity as a Court” (Status of Eastern Carelia,
P.C.LJ., Series B, No. 5, p. 29). That reference to “the Court, being a Court
of Justice”, was repeated by the Permanent Court in the case of the Free
Zones of Upper Savoy and the District of Gex (loc. cit., p. 15). The emphasis
has been maintained by the present Court in several cases. See, for exam-
ple, the case of the Constitution of the Maritime Safety Committee of the
Inter-Governmental Maritime Consultative Organization where the Court
said : “The Court as a judicial body is. . . bound, in the exercise of its advi-
sory function, to remain faithful to the requirements of its judicial charac-
ter.” (CJ. Reports 1960, p. 153.) The case of the Applicability of the
Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947 represents a recent reaffirmation by the Court
of its status as a “Court of justice” (.C.J. Reports 1988, p. 29, para. 40).
More particularly, using language which differences in context do not
render inapplicable to the situation being considered, in the Northern
Cameroons case the Court said:

“There are inherent limitations on the exercise of the judicial func-
tion which the Court, as a court of justice, can never ignore. There

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33  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

may thus be an incompatibility between the desires of an applicant,
or, indeed, of both parties to a case, on the one hand, and on the other
hand the duty of the Court to maintain its judicial character. The
Court itself, and not the parties, must be the guardian of the Court’s
judicial integrity.” (C.J. Reports 1963, p. 29.)

At page 30, the Court insightfully added:

“That [judicial] function is circumscribed by inherent limitations
which are none the less imperative because they may be difficult to
catalogue, and may not frequently present themselves as a conclusive
bar to adjudication in a concrete case.”

Although certain specific rules were also involved, it seems clear that
the refusal of the Court in the Free Zones of Upper Savoy and the District of
Gex case to accede to the request of the parties that the Court should com-
municate to them unofficially the results of its deliberations illustrates the
operation of an inherent limitation which the Court could not ignore
(P.C.IJ., Series A, No. 22, p. 12). That limitation flowed essentially from
the status of the Court as a court of justice. It is possible to see a similar
inherent limitation, relating to the audi alteram partem principle, underly-
ing much of the thinking of the Court in the Status of Eastern Carelia case
(P.C.LJ., Series B, No. 5). So too with the cases of the Judgments of the
Administrative Tribunal of the ILO upon Complaints Made against Unesco
(.CJ. Reports 1956, p. 77), Application for Review of Judgement No. 158
of the United Nations Administrative Tribunal (I.C.J. Reports 1973, p. 166)
and Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal (I.C.J. Reports 1982, p. 325). In the first of
these Judge Winiarski noted that the

“important problem which the Court had to resolve was to reconcile
its advisory function and its character as a Court of Justice, as an
independent judicial organ of international law” (p. 104).

A like inherent limitation, it is submitted, prevents the Court from allow-
ing its decision as to which of its regular Members should sit in any parti-
cular case to be in the least influenced by the contesting parties.

The history of the creation of the Permanent Court makes it clear that
the concept of a court of justice to which the Court was intended to con-
form was that of a court of justice as generally understood in municipal
law. That being so, warnings about the danger of transposing municipal
law ideas to the international plane would not seem apt in this context.
The fact that the Court was to function on the international plane was not
regarded as importing any substantial modifications of the essential ele-
ments of that concept in its application to the Court. This would seem to
put limits to attempts to justify the new system by reference to the interna-
tional nature of the Court. It is true, for example, that States which entrust

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34 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

a dispute to an international tribunal expect to have a say in its composi-
tion and functioning (see René-Jean Dupuy, loc. cit., p. 272). But if, as
seems to be the case, the framers of the 1920 Statute and its successor did,
on that very ground (see the “Report of the Advisory Committee of Jur-
ists”, 1920, p. 722, cited above), address their minds to, and did specify, the
precise extent to which States were to be permitted to participate in the
composition and functioning of the Court, is it competent for the Court
itself, by an exercise of its subordinate and limited rule-making power, to
enlarge the extent of that permissible participation as defined by the gov-
erning instrument? The material makes it clear that the concept of judges
being selected by the parties was regarded as being a characteristic of arbi-
tral procedures; that, as such, that concept was essentially opposed to the
judicial character of the Court; that, on special grounds, it was, after
anxious debate, nevertheless allowed a limited operation within the consti-
tution of the Court in relation to ad hoc judges; but that this limited
operation could not be extended consistently with the judicial character
of the Court without an appropriate enabling amendment of its Statute.

PART III. CONSISTENCY OF THE NEW RULES, WITH THE STATUTE
OF THE COURT

The conclusion reached above is supported by a consideration of the
relationship between Article 17, paragraph 2, of the Rules of Court 1978,
and Article 26, paragraph 2, of the Statute of the Court. The latter provi-
sion, introduced in 1945, reads:

“The Court may at any time form a chamber for dealing with a
particular case. The number of judges to constitute such a chamber
shall be determined by the Court with the approval of the parties.”

Article 71, paragraph 3, of the Rules of Court 1946 correspondingly
required the President of the Court to “ascertain the views of the parties as
to the number of judges to constitute the Chamber”.

The judicial character of the Court, as sought to be demonstrated
above, would seem to support an argument a contrario to the effect that
the specific reference in Article 26, paragraph 2, of the Statute to the
approval of the parties of the “number” of judges of an ad hoc chamber
(repeated, as it was, in Article 71, paragraph 3, of the 1946 Rules) excluded
an intention to give them a say also over the selection of such judges.

Nothing in the records of the Washington Committee of Jurists 1945
and of the subsequent proceedings at San Francisco suggests an under-
standing that parties could have a right to select, or to influence the selec-
tion of, Members of the Court to be members of a chamber (see Documents

35
35  DISPUTE (EL SALVADOR/ HONDURAS) (DISS. OP. SHAHABUDDEEN)

of the United Nations Conference on International Organization, San Fran-
cisco, 1945, Vol. XIV, pp. 200-202, 221-222, 271, 282, 317, 333-334 and
834-835). The closest one gets to any discussion of the matter is through
Judge Hudson’s much quoted statement in the Washington Committee of
Jurists. The relevant part of the official records reads:

“The next question, the Chairman said, was the number of judges
on chambers. Sir Frederic Eggleston (Australia) asked whether the
chamber of summary procedure could sit at the same time as the full
Court. Judge Hudson pointed out that there had been little use of
chambers and that the question had never arisen. He pointed out that
under the present Statute the Court elected members to chambers for
a given term of years and that the parties did not decide the number
or the composition of the chambers. He thought the subcommittee
was proposing a wholly different system when it provided for ad hoc
appointment of chambers with the approval of the parties.” (Ibid.
p. 199, 16 April 1945.)

Judge Hudson’s statement that under the previous Statute “the parties
did not decide the number or the composition of the chambers” was of
course accurate. The statement also shows that Judge Hudson appre-
ciated that there was a distinction between “number” and “composition”.
The new provision spoke only of “number”, and the clear tendency in the
recorded discussions was to refer to it as being so confined. However
“wholly different” was the new system, it would require a powerful side-
wind to extend the explicit reference to “number” to encompass “compo-
sition”. As has been seen, the Court itself, through Article 71, paragraph 3,
of the 1946 Rules of Court, reflected no such extension: it spoke expressly
and deliberately of the President ascertaining “the views of the parties as
to the number of judges to constitute the Chamber”. One may well sup-
pose that the judges who made that Rule in 1946 were close enough to the
making of the new Statute to grasp its meaning correctly on this point.
Had the intention of the Statute been to sanction consultation of the part-
ies on composition, it is surprising that it should have taken the Court over
a quarter of a century to divine so important a purpose and to incorporate
it in its new Rules.

Even if, which is doubtful, Judge Hudson understood matters differ-
ently, the record does not suggest that so strange and strained an interpre-
tation was shared by other members of the Washington Committee of
Jurists. Two of the later speakers, Ambassador Cordova of Mexico and
the Chairman of the Committee, Mr. Hackworth, spoke only of the “num-
ber”. Ambassador Cordova in particular “pointed out that the Court was

36
36  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

_to be given the power to fix the number to sit in the chambers and the
parties given the opportunity to approve this arrangement” (ibid.). The
chairman of the drafting committee did subsequently say that the draft
Article 26 “provided that when the Court set up chambers to decide parti-
cular cases the approval of the parties should be obtained. This was in
harmony with the advice of three judges of the Court” (ibid., p. 221). But it
would not be right to suppose that other members could have understood
this language as embracing a requirement for obtaining the approval of
the parties for the selection of particular judges. Referring to a statement
made by Mr. Fitzmaurice on 16 April 1945, the record reads:

“Mr. Fitzmaurice (United Kingdom) suggested that the Court
should not be obliged to set up chambers in advance but if the Court
decided to establish standing chambers the number should be fixed
by the Court. If chambers were established ad hoc, the number of
judges would be fixed by the Court with the consent of the parties.
The question being put in this form, there were 21 votes in favor, and
none in opposition.” (Jbid., p. 202.)

The form in which the question was put and unanimously answered could
hardly have suggested to any of the participants that it concerned a
requirement to obtain “the consent of the parties” for the selection of par-
ticular serving judges as members of an ad hoc chamber.

Judge Delgado of the Philippine Commonwealth, who spoke in the
Committee of Jurists on 18 April 1945, did speak of “the composition of
the chambers”, but he did so in a manner which showed how utterly unac-
ceptable he would have considered the idea of the parties being given a
right to influence selection. The record reads in part:

“Judge Delgado (Philippine Commonwealth) suggested that the
number of judges to compose a chamber should be specified in para-
graph 2 [of Article 26 of the Statute] as well as in paragraph |... The
Chairman explained that in paragraph 2 it had been desired to leave
the matter to the discretion of the parties ... Judge Delgado ...
thought paragraph 2 should be consistent with paragraph 1, and he
did not wish to have the composition of the chambers determined by
political agencies.” (Jbid., p. 222.)

Judge Delgado was clearly opposed to conceding control, even if limited
to “number”, lest this should let in political influence over “composition”.

In all the circumstances, it would require more than an isolated remark
of the kind made by Judge Hudson to evidence a credible intention to
effect by indirection an amendment of manifest substance in the inherited
scheme of the Statute of the Permanent Court — an amendment of sub-

37
37  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

stance because, as Judge Hudson himself almost certainly knew (see Hud-
son, The Permanent Court of International Justice, 1943, p. 179, footnote
49) and as has been mentioned above, a 1920 proposal to permit parties to
nominate the members of a chamber had been rejected on the precise
ground that “this method would too much resemble that proper to arbitra-
tion”. That ground went of course to the heart of the judicial character of
the Court. To modify that character on the slender foundation of Judge
Hudson’s remark would seem a somewhat daunting enterprise. In the
North Sea Continental Shelf cases (Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands), Judge Ammoun made a
remark which comes to mind: “But if such had been the intention of the
authors of the Convention, they would have expressed it, instead of allow-
ing it to be deduced in such a laborious fashion.” (1.C.J. Reports 1969,
p. 115.)

Opposing arguments have largely founded themselves on a statement,
also much quoted, made by Judge Jessup in 1970 when he said:

“It has been suggested elsewhere that if the difficulty of resort to
the International Court of Justice lies in a State’s preference for a
tribunal in whose composition it will have a say, this result can be
achieved by the use of ‘a Chamber for dealing with a particular case’,
as is authorized by Article 26 (2) of the Statute. Under Article 31 of
the Statute, the provisions about national judges are applicable to
such a Chamber so that the Chamber could be composed of a judge
of the nationality of each one of the parties, with a third judge elected
by the Court very much as the President of the Court now often is
authorized to appoint presiding arbitrators.” (Philip C. Jessup, “To
Form a More Perfect United Nations”, Collected Courses of the
Hague Academy of International Law, Vol. 129 (1970-T), p. 21.)

The procedure contemplated by Judge Jessup, as illustrated by himself,
(Philip C. Jessup, The Price of International Justice, 1971, pp. 62-64)
involved, first, an election by the Court of three of its Members to be mem-
bers of the chamber; second, if necessary, the standing down, at the
request of the President, of one or two of those elected to allow each party
to have its own judge on the chamber; and, third, the appointment of a
replacement judge or judges by each party, as may be necessary. That
procedure would not involve the parties in having a say either in the elec-
tion by the Court of the original three members of the chamber or in the
decision of the President as to which of them should stand down. If Judge
Jessup then intended that the parties should have such a say, he did not
say so in the particular passage relied upon for imputing that view to him.

Judge Jessup’s proposal for giving the parties a say in the composition
of a chamber worked itself out through the appointment of party-selected
judges to a small three-member chamber, with one or two elected judges

38
38  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

yielding up their places if necessary. There seems to be nothing in his
published model which suggests that he then considered that the Rules of
Court could be amended consistently with the Statute to give the parties a
say in that part of the procedure by which the Court elects serving judges
to be members of an ad hoc chamber and the President decides which of
them should then stand down. Similar observations apply to the earlier
ideas of Mr. James N. Hyde on the subject (James N. Hyde, “A Special
Chamber of the International Court of Justice — an Alternative to Ad Hoc
Arbitration”, American Journal of International Law, 1968, Vol. 62, p. 439).
Both writers would have had good reason for not going so far. The word-
ing of Article 31, paragraph 4, of the Statute strongly suggests that the
system regulating the sitting of party-selected judges on an ad hoc cham-
ber assumed that the parties had no influence on, and no advance know-
ledge of, the results of the election made by the Court of serving judges
to be members of the chamber. Thus, in the case of litigating States with
nationals already on the Bench, it was only in the after-light of the results
of the election that a determination could be made by the President of the
extent to which it might be necessary to activate the procedure relating to
national judges. Nor was it a foregone conclusion that litigating States
with no nationals on the Bench would always wish to appoint ad hoc
judges to a chamber; following on an election they might conceivably be
so satisfied with the resulting composition of the chamber as to abstain
from exercising their entitlement to appoint ad hoc judges, in like manner
as some States have abstained from doing so in relation to the full Court.
This system, with its associated assumptions as to lack of influence on, or
advance knowledge of, the results of an election, was based directly on the
Statute itself. And the Statute continues in full force.

Although considering that the names of members of an ad hoc chamber
who were to be requested by the President to “step down” in favour of
judges chosen by the parties could also be the subject of consultation
between the President and the parties, Judge Jiménez de Aréchaga clearly
recognized that what I would for convenience call the “standing-down
procedure”, as laid down by Article 31, paragraph 4, of the Statute, would
continue to apply to such a chamber even after the 1972 amendments
(Eduardo Jiménez de Aréchaga, loc. cit., p. 3). A neglect in the Rules to
reflect that fact was rightly cured by an appropriate change made in 1978
in Article 17, paragraph 2, of the Rules. As I sought to point out more fully
in the separate opinion which I appended to the Order made in this case
on 13 December 1989 (1.C.J. Reports 1989, pp. 165-167), the prescribed
procedure was correctly observed in the case of the Delimitation of the
Maritime Boundary in the Gulf of Maine Area, Constitution of Chamber
(C.J. Reports 1982, pp. 4, 8 and 9). It was not applied in the case concern-
ing Elettronica Sicula S.p.A. (ELSI), Constitution of Chamber (1.C.J.
Reports 1987, pp. 3-4) for the reason that (however it came about) the

39
39  DISPUTE (EL SALVADOR/ HONDURAS) (DISS. OP. SHAHABUDDEEN)

elected judges included two serving national judges. It was not applied in
the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
Constitution of Chamber (.C.J. Reports 1985, pp. 6-7) nor in the case con-
cerning the Land, Island and Maritime Frontier Dispute (El Salvador/Hon-
duras), Constitution of Chamber (I.C.J. Reports 1987, p. 10). The Orders of
Court in these two cases simply show the election of three serving judges
and the addition of two named ad hoc judges. The Court did not, as it
ought to have done under the prescribed procedure, elect five serving
judges subject to two being asked to stand down in favour of ad hocjudges
to be later chosen by the parties. Contrary to the laid down sequence, the
two ad hoc judges were chosen by the parties before the election by the
Court of any serving judges. The observance of the standing-down pro-
cedure prescribed by Article 31, paragraph 4, of the Statute made no prac-
tical sense in a situation in which the Court was in fact electing serving
judges who had been previously designated by the parties (see Shabtai
Rosenne, Procedure in the International Court, A Commentary on the 1978
Rules of the International Court of Justice, 1983, p. 43). The logic of allow-
ing the parties a right to exercise “decisive influence” over selection
would naturally lead to dispensation with that procedure. The question
remains whether it was competent for the Court to confer such a right on
them by Rules of Court.

A negative answer to that question is suggested by the inescapable fact
that the standing-down procedure continues to apply to ad hoc chambers
by virtue of the express provisions of Article 31, paragraph 4, of the Sta-
tute itself. Neither the Rules of Court nor any practice adopted by the
Court can vary the scheme as laid down in those overriding provisions of
the master law. Indeed, as has been noticed, the applicability of that
scheme to ad hac chambers was expressly and correctly recognized by an
amendment made in Article 17, paragraph 2, of the Rules of Court in 1978.
It applies to other chambers by virtue of Article 91, paragraph 2, of the
Rules. What does therefore emerge is that the very decision to dispense
with the standing-down procedure in relation to ad hoc chambers is an
indication of the extent to which practical control over selection of serving
judges as members of such chambers has been conceded to the parties; for
it is only on this basis that the observance of a procedure still legally com-
manded both by the Statute and by the Rules would become the pointless
ritual which presumably led to the decision to ignore its continuing
existence in law.

It is not a persuasive answer to say that the application of the standing-
down procedure of Article 31, paragraph 4, of the Statute to chambers
dated back to 1936 before the establishment of ad hoc chambers was
visualized. Article 31, paragraph 4, was in fact modified in 1945 to reflect

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40 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

other changes made in the new Statute in relation to chambers, in conse-
quence of which an earlier reference in that provision to Article 27 had
to be deleted. In so far as concerned the applicability of Article 31, para-
graph 4, to the new Article 26, paragraph 2, relating to ad hoc chambers, the
records of the Washington Committee of Jurists for 18 April 1945 read:

“Article 31. Mr. Fitzmaurice (United Kingdom) raised the ques-
tion whether paragraph 4 of Article 31 was not already covered by
paragraph 2 of Article 26. It was decided to leave paragraph 4 of Ar-
ticle 31 as it stood, and Judge Hudson noted that under paragraph 2
of Article 26 the Court could not appoint ad hoc judges. Professor
Basdevant (France) noted a mistake in the French text of paragraph 4
of Article 31.” (Documents of the United Nations Conference on Inter-
national Organization, San Francisco, 1945, Vol. XIV, p. 224.)

So the relationship between Article 31, paragraph 4, and the new Arti-
cle 26, paragraph 2, relating to ad hoc chambers did receive consideration.
It is reasonable to assume that if Article 31, paragraph 4, was left in a form
which made it applicable “as it stood” to the new provisions relating to
ad hoc chambers, this was because this result was deliberately intended.
And it was deliberately intended because the Statute was not based on any
idea of parties having any influence over the selection of serving judges to
be members of such a chamber. It is only if a different view is taken on this
pivotal point that the application of the standing-down procedure of
Article 31, paragraph 4, to ad hoc chambers can appear aberrant (cf.
Geneviéve Guyomar, “La constitution au sein de la Cour internationale
de Justice d’une chambre chargée de régler le différend de frontiéres
maritimes entre les Etats-Unis et le Canada”, Annuaire francais de droit
international, 1981, Vol. XXVII, p. 220). Far from appearing aberrant
to Judge Jessup, that procedure constituted an essential building block
of his 1970 model.

With respect to the argument that the express reference to “number”
excludes “composition”, it has been said: “This objection is not of a very
important character since nothing in the Statute would forbid the Presi-
dent to consult.” (Edvard Hambro, loc. cit., p. 369.) It is submitted that
there is indeed something in the Statute which forbids the President from
doing so, and that the objection based on it cannot be brushed aside as
being “not of a very important character”. The whole nature of the Court,
as a court of justice, constitutes a prohibition, no less clear for being
implied, against giving the parties any say in the selection of judges to hear
a case, whether through the Rules of Court or otherwise, and whether in
whole or in part, except in the case of ad hoc judges. So fundamental was
that prohibition to the character of the Court as a court of justice, as distin-
guished from an arbitral body, that it was no more necessary to express it

41
41 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

in its Statute than it would have been to do so in the constitution of any
other “court of justice” within the normal acceptation of the meaning of
this expression.

This implied prohibition is not neutralized by approaching the matter
from the point of view of the doctrine of implied powers. True, the fact
that specific powers are conferred on a body does not necessarily imply
the non-existence of others. But the latter do not float around at large. In
the last analysis, all the powers of a body must be conferred by its consti-
tuent instrument, whether expressly or impliedly. Speaking of the powers
of the United Nations, the Court said:

“It must be acknowledged that its Members, by entrusting certain
functions to it, with the attendant duties and responsibilities, have
clothed it with the competence required to enable those functions to
be effectively discharged.” (Reparation for Injuries Suffered in the
Service of the United Nations, I.C.J. Reports 1949, p. 179; emphasis
supplied.)

At page 182, the Court added:

“Under international law, the Organization must be deemed to
have those powers which, though not expressly provided in the Char-
ter, are conferred upon it by necessary implication as being essential
to the performance of its duties.” (Jbid.; emphasis supplied.)

Putting greater emphasis on the extent to which such additional powers
must be so required, Judge Hackworth, dissenting, stated:

“Powers not expressed cannot freely be implied. Implied powers
flow from a grant of expressed powers, and are limited to those that
are ‘necessary’ to the exercise of powers expressly granted.” (Jbid.,
p. 198. See also, by him, Effect of Awards of Compensation Made by the
United Nations Administrative Tribunal, I.C.J. Reports 1954, p. 80.)

The need for some limitation was also recognized by Judge Fitzmaurice in
Certain Expenses of the United Nations (I.C.J. Reports 1962, pp. 208, 213).
(See also, by him, “Hersch Lauterpacht — The Scholar as Judge” — Part
Ill, British Year Book of International Law, 1963, Vol. 39, p. 154, footnote,
and his separate opinion in the Golder case, European Court of Human
Rights, judgment of 21 February 1975, Series A, Vol. 18, p. 32.)

However elastic may be the test to be applied in determining the exis-
tence and extent of implied powers — and undue rigidity is surely to be
avoided — it seems in any event clear that a constituent instrument cannot
be read as implying the existence of powers which contradict the essential

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42  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

nature of the organization which it creates to exercise them. Powers of that
kind could not be described as “required” or “essential” (within the mean-
ing of the Reparation case) to enable the organization effectively to dis-
charge the functions laid upon it by its organic text.

As sought to be shown above, the basis on which the Court was created
leaves no room for doubt that, notwithstanding the limited extent to which
the appointment of ad hoc judges was permitted, the Court was intended
to function as a court of justice as generally understood. As I have had
occasion to opine in the case of the Applicability of Article VI, Section 22, of
the Convention on the Privileges and Immunities of the United Nations
(1.C.J. Reports 1989, p. 213), the chief characteristic of a court of justice is
that it is invested with judicial power. In the normal case, some external
agency possessed of appropriate legislative competence over the jurisdic-
tion of a court of justice, or, failing that (as in this case), the machinery
competent to amend the constitution of the court, may well have authority
to modify the extent of the court’s original endowment of judicial power;
but, however that may be, the court itself is powerless to alienate any part
of its grant. The definition of judicial power can be a matter of diff iculty,
but it is reasonably clear that it includes not merely the power to hear and
determine, but also, where necessary, the power to decide what particular
members of the court shall hear and determine any particular case. The
latter is part of the process by which the Court determines how it will exer-
cise judicial power.

Absent any specific guidance in the literature of the Court, and the mat-
ter being one of general jurisprudence, I turn to the approach taken at the
municipal level in Reg. v. Liyanage ((1963) 64 N.L.R. 313, at p. 359, con-
sidered in Liyanage v. The Queen [1967] 1 A.C. 259, P.C.) in which the
Supreme Court of Ceylon struck down a law purporting to authorize a
Minister to designate three serving judges to try certain persons on parti-
cular charges, the ground given by the Court being that the power to select
judges to hear particular cases was part of the inalienable judicial power
of the Court. The reasoning in that case is not applicable here in its
entirety. But it is in large part. It may be observed, in particular, that, mir-
roring in principle the position in that case, throughout the history of the
World Court right up to the 1972 changes, the selection of serving judges
of the Court to be members of a chamber rested exclusively with the Court
itself. It is inconceivable that the Court would have regarded that right as
anything other than an integral part of its judicial power. It is useful also to
note certain references in the cited case to possible exclusion of some
judges from rightful participation in the exercise of the Court’s judicial
power, the risk of undignified treatment of the head of the Court, and,
more pertinently, the possibility of judges being selected by a party inter-
ested in the litigation. The case was, of course, decided at the municipal
level. But it seems to me that it would be rash to dismiss it entirely on that
account: except where clearly provided otherwise in the Statute, it would

43
43  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

be a profitless, if not dangerous, affectation to appeal to the international
status of the International Court of Justice to suggest that it occupies a
materially different position in respect of matters normally regarded as
inconsistent with the basic concept of a court of justice under municipal
law.

The Ceylon case involved the municipal law concept of separation of
powers, and this, it has been held, is “not applicable to the relations among
international institutions for the settlement of disputes” (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, LC.J. Reports 1984, p. 433). But
this dictum has no application to the question whether the Court itself
may allow such judicial power as has in fact been vested in it to be exer-
cised by persons other than itself. True, also, the Ceylon case involved an
outright designation of judges by an agency external to the court, whereas
the system under review only gives to the parties a say in the designation,
which remains ultimately with the Court itself, with the right to decide
differently if it wishes. But there is difficulty in conceding that this should
make any legal difference. A proper concern for the preservation of the
juridical wholeness of the Court does not suggest that this is an area in
which fascination with forms can be suffered to prevail over regard for
substance. As mentioned earlier, Judge Jiménez de Aréchaga, a principal
architect of the new system, had said that the “main change introduced...
[was] to accord to the parties a decisive influence in the composition of
ad hoc Chambers” (Eduardo Jiménez de Aréchaga, loc. cit, p. 2). No
reason appears for thinking that this authoritative statement of purpose
differed from actual practice up to the time when the Chamber in this
case was established. Even if not “decisive”, the influence accorded is cer-
tainly substantial, for, as earlier observed, it could not be supposed
that the Court was being required to ascertain the views of the parties
as to the composition of a chamber while being entirely free to ignore
them. Whether “decisive” or “substantial”, the influence so given to the
parties was, in my respectful opinion, an illicit conveyance of an essential
part of the Court’s patrimony.

It is true that the secrecy requirement in elections of judges as members
of an ad hoc chamber continues to apply. But so also does a connected
requirement, no less compelling for being assumed, that such elections
must also be free. Arguments in opposition to the new system assert that it
leads to an infringement of the secrecy requirement in the sense that the
result is known in advance. Perhaps, in that sense, there is an infringe-
ment, even though the formal procedures do remain secret. But a stronger
argument would seem to be that the new system violates a certain freedom
of choice which the secrecy provision was intended to insulate against

44
44  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

pressure and extraneous influences!. In an election of serving judges to be
members of a chamber, the voting judge is electing fellow members of a
court of justice to hear and determine a case at arm’s length between con-
testing parties. That is a purely domestic exercise of the Court, in relation
to which the views of the parties are at best irrelevant, at worst injurious.
The effective result of the system under review being to accord them a
“decisive influence”, it is neither credible nor acceptable to aver that elec-
tions made on that basis can realistically claim to represent a free exercise
of the will of the Court.

This, in turn, is why it serves little purpose to seek to down-play the
status of the requirement for holding elections on the ground that the
requirement exists only under the Rules of Court and not under the Sta-
tute. True enough. But what does exist under the Statute is an assumption
that the selection, however made by the Court, of those of its Members
who are to serve as members of a chamber would represent a free and
genuine exercise of the will of the Court. It was perfectly proper for the
Rules to seek to ensure this important result by enveloping the procedure
within the protective framework of an election by secret ballot.

In the case of the Constitution of the Maritime Safety Committee of the
Inter-Governmental Maritime Consultative Organization, construing the
word “elected” as it appeared in Article 28 (a) of the Convention for the
Establishment of the Inter-Governmental Maritime Consultative Organi-
sation, the Court said:

“The meaning of the word ‘elected’ in the Article cannot be deter-
mined in isolation by recourse to its usual or common meaning and
attaching that meaning to the word where used in the Article. The
word obtains its meaning from the context in which it is used. If the
context requires a meaning which connotes a wide choice, it must be
construed accordingly, just as it must be given a restrictive meaning if
the context in which it is used so requires.” (Z.CJ. Reports 1960,
p. 158.)

The context of that case favoured a restrictive meaning. In this case, the
Rules of Court are to be construed in the light of the Statute, and both
must of course be viewed in the light of the Charter, of which the Statute
indeed forms part. It is in this way that the context is to be ascertained for
the word “election”, as it appears in Article 17, paragraph 3, of the Rules
of Court, and more particularly as it is linked with the words “by secret
ballot” appearing in Article 18, paragraph 1, of the Rules. Thus consid-
ered, there is nothing in the context which can so validly constrain the
freedom normally associated with the concept of an election by secret bal-
lot as to afford the parties any influence over the result, whether “deci-

! For the general theory underlying an electoral secrecy provision, see the Maple Val-
ley Case (1926) 1 D.L.R. 808, at pp. 814-815; 29 Corpus Juris Secundum, para. 201 (1),
pp. 557-558; and Withers v. Board of Commissioners of Harnett County (1929) 146 S.E.
225, at p. 226.

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45 DISPUTE (EL SALVADOR/ HONDURAS) (DISS. OP. SHAHABUDDEEN)

sive” or not. On the contrary, everything in the context prohibits the intro-
duction of any such influence into the process. With that prohibition,
fixed as it is by the very nature of the Court as established by the Charter
and the Statute, it is vain to seek to interfere by an exercise of the subordi-
nate and limited rule-making power of the Court. The regular judges of
the Court, it must be remembered, are elected by the General Assembly
and the Security Council, the possible involvement of the Court in that
process being merely contingent under Article 12, paragraph 3, of the
Statute.

Article 2 of the Statute requires judges of the Court to be “indepen-
dent”. The importance of that quality for the Court as a whole has been
rightly stressed in the literature (see Conditions of Admission of a State to
Membership in the United Nations (Article 4 of the Charter), I.C.J. Reports
1947-1948, p. 95, per Judge Zoritit; and Judgments of the Administrative
Tribunal of the [LO upon Complaints Made against Unesco, I.C.J. Reports
1956, p. 104, per Judge Winiarski). It is not easy to think of any concept of
judicial independence which is consonant with particular judges being
named to sit in a particular case practically at the behest of the parties.
Referring to the term “court” in Article 5, paragraph 4, of the European
Convention on Human Rights, the European Court of Human Rights
observed that

“{t]his term implies only that the authority called upon to decide...
must possess a judicial character, that is to say be independent both
of the executive and of the parties to the case” (see European Court
of Human Rights, the Neumeister case, judgment of 27 June 1968,
Series A, p. 44, para. 24; emphasis added).

I cannot think of any reason excluding the substance of this view in the
case of an international court.

Do the new arrangements place the independence of the Court at risk?
To take one example, in selecting judges as members of a chamber it
would, I think, be extraneous and legally impermissible for the Court
itself (by which as a whole the selection is ultimately made when forming
the chamber under Article 26, paragraph 2, of the Statute) to be guided by
acriterion as to the extent to which its jurisdiction is accepted by countries
from which particular judges come. No such test is visualized by the
Statute, which does not regard a judge as representing his country or his
nationality as relevant to his independence (see Certain Norwegian Loans,
I.C.J. Reports 1957, p. 45, per Judge Lauterpacht, and Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States of
America), I.C.J. Reports 1986, pp. 158-160, per Judge Lachs, and p. 528, per
Judge Jennings). Yet it would seem that the new system is structured in a
way which enables litigating parties, if they wish, to exclude judges from
an ad hoc chamber on the basis of precisely that criterion or criteria simi-
lar to it (see Judge Petrén, loc. cit., pp. 61-62; and Mr. John R. Stevenson, in
American Society of International Law, Proceedings of the 80th Annual

46
46 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

Meeting, 1986, p. 202). If, as I think, the Court itself cannot take such con-
siderations into account when electing judges to be members of an ad hoc
chamber, can it, by Rules, authorize a procedure which enables such con-
siderations to be indirectly taken by it into account through reception of
the views of the parties? That the Court may not in fact be aware of the
motivation of the parties does not diminish the risk: on the contrary, it
makes the risk even more palpable.

Similar observations apply in relation to Mr. Edvard Hambro’s arrest-
ing observation to the effect that the new consultation procedure

“means also in fact although not in law that the rules concerning
imcompatibilities of judges have been changed since it may safely be
assumed that the parties will scrutinize the background of the judges
very carefully and exclude any person who may be considered as
‘unfriendly’ on account of previous dealings with the same or similar
problems, even though such dealings would not be considered by
himself, the President or the Court to be of such a character that he
would be excluded from sitting in the case” (Edvard Hambro, loc. cit.,
p. 368).

The grounds of incompatibility are prescribed by Articles 16 and 17 of the
Statute itself. Can an amendment to the Rules of Court effectively
empower the parties to add to those grounds in the exercise of a practi-
cally unreviewable discretion? I cannot think so. And yet that, indeed, is
what the new Rules would enable the parties to do.

Arguments in favour of the new system place some reliance on the in-
applicability to chambers of Article 9 of the Statute — a provision which
relates to the globally representative composition of the Court, in the
sense that it was visualized that in the Court “as a whole the representation
of the main forms of civilization and of the principal legal systems of the
world should be assured”. Under Articles 26 and 27 of the 1920 Statute,
judges of the labour chamber and of the transit and communications
chamber were to be “selected so far as possible with due regard to the
provisions of Article 9”. The fact that those chambers consisted of five
members each, whereas the Chamber of Summary Procedure consisted of
only three members until this was increased to five in 1936, probably
accounts, at least in part (accessibility to The Hague might have been
another factor), for the origins of the omission of a reference to Article 9 in
Article 29 of the 1920 Statute relating to the Chamber of Summary Pro-
cedure, it being obvious that a three-member chamber could not possibly
hope to achieve anything reasonably approximating to global representa-
tiveness. Possibly it was an extension of this reasoning which ultimately
led in 1945 to the complete omission from the chambers provisions of the

47
47  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

present Statute of any reference to Article 9. But, whatever the reason, it
would not appear that this omission could in any way support an argu-
ment in favour of the legality of the new system (cf. Eduardo Jiménez de
Aréchaga, loc. cit., pp. 2-3). What is in issue is freedom of choice by the
Court in relation to the will of the parties, not the question whether the
exercise of that choice should or should not conform to Article 9.

If in fact that freedom of choice is materially impaired under the new
system, a question which will arise is this : granted that a chamber need not
be representative of the global distribution of civilizations and legal sys-
tems, must it not at any rate represent the result of a truly free exercise of
the will of the Court itself in order to be able to pass as a credible manifes-
tation of the Court in its capacity as “the principal judicial organ of the
United Nations” within the meaning of Article 92 of the Charter? Cana —
chamber, whose members have each been practically hand-picked by the
litigants themselves, pass as the “principal judicial organ of the United
Nations” ? Was this what the framers of the Charter intended when they so
characterized the Court? More particularly, was that the kind of chamber
they had in mind when they accepted in Article 27 of the Statute that a
“judgment given by any of the chambers provided for in Articles 26 and 29
shall be considered as rendered by the Court” and should accordingly be
enforceable by recourse to the Security Council under Article 94 of the
Charter? One may be permitted to doubt it.

I appreciate the argument that, in view of the existence of the Chamber
of Summary Procedure, there could have been little point in providing for
ad hoc chambers in 1945 unless it was intended that the parties should
have some say in their composition. My difficulty is that, if this was the
intention, it is not to be found in the text of the Statute, and the fundamen-
tal character of the Court does not suggest that it can be implied. Further,
the assumption of unnecessary duplication in the absence of such an
intention may not be well grounded, for it does not seem safe to suppose
that it was contemplated that an ad hoc chamber would always be of the
same size as the Chamber of Summary Procedure, or that it would neces-
sarily be dealing with the same type of cases which might have been
thought appropriate for determination by the Chamber of Summary
Procedure. Some of the cases which have gone to ad hoc chambers could
hardly have lent themselves to treatment by a chamber of summary pro-
cedure which was intended for “the speedy dispatch of business” as
expressly visualized by Article 29 of the Statute.

To sum up, the field of operation of the rule-making power of the
Court, as defined by Article 30 of the Statute, is wide but not unlimited.
The Court, it may be said, has a certain autonomy in the exercise of its
rule-making competence; but autonomy is not omnipotence, and that
competence is not unbounded. Rules of Court could only be made in exer-
cise of powers granted by the Statute, whether expressly or impliedly. The
Statute did not expressly grant power to the Court to confer by Rules a

48
48 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

right on the parties to have their views taken into account in the selection
of serving judges to be members of an ad hoc chamber. Nor was any such
power granted by the Statute impliedly: however generous may be the
principle regulating the ascertainment of the extent of the Court’s implied
powers, such powers encounter an ultimate limit when they collide with
the intrinsic nature of the Court itself. For the reasons given, the selection,
whenever necessary, of serving judges to sit in any particular case is an
integral part of the inalienable judicial power confided to the Court by the
world community. The Court cannot, directly or indirectly, convey away
that power in whole or in part, or share it with others, without destroying
its essential character as a court of justice. A Rule of Court which purports
to do so is contrary to the Statute. In the words of Judge Fitzmaurice, dis-
senting:

“The Court has no power to make Rules that conflict with its Sta-
tute: hence any rule that did so conflict would be pro tanto invalid,
and the Statute would prevail.” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports
1971, p. 310.)

Judge Mbaye spoke to similar effect in the case concerning the Continen-
tal Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to
Intervene (1.C.J. Reports 1984, p. 44). And a Rule of Court which is ultra
vires the Statute is also ultra vires the Charter, first, because Article 92 of
the Charter expressly declares that the Statute “forms an integral part of
the present Charter”, and, second, because the same Article of the Charter
expressly requires the Court to “function in accordance with the annexed
Statute”. In the result, as Judge Lauterpacht said in his dissenting opinion
in the Interhandel case:

“the Court, as shown by its practice and as indicated by compelling
legal principle, cannot act otherwise than in accordance with its
Statute, of which it is the guardian” (Z.C.J. Reports 1959, p. 104. See,
also by him, in Certain Norwegian Loans, C.J. Reports 1957, p. 45.)

The foregoing considerations suggest that the requirement in Article 17,
paragraph 2, of the Rules of Court 1978 for the President to ascertain the
views of the parties regarding the “composition” of an ad hoc chamber
should be construed harmoniously with the Statute, and that, when so
construed, it is restricted to ascertainment of the views of the parties as to
the “number” of members of the chamber. Failing that construction — a
construction which does not correspond either with the general under-
standing of the provision or with the actual practice under it — it would
seem that Article 17, paragraph 2, of the Rules is pro tanto ultra vires the
Statute. For, as was observed by Judge Hackworth in his dissenting opin-

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49 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

ion in the case of the Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal:

“The duty of a court when faced with apparent incompatibility
between a legislative enactment and the constitution (the Charter) is
to try to reconcile the two. If this cannot be done the constitution
must prevail.” U.C.J. Reports 1954, p. 83.)

PART IV. JUDICIAL TENURE

The far-reaching implications of the new system now bring me to the
question of judicial tenure, a matter alluded to in the letter from the Agent
for Nicaragua to the Registrar of 1 February 1990. The question concerns
an associated amendment as a result of which Article 17, paragraph 4, of
the Rules of Court reads:

“Members of a Chamber formed under this Article who have been
replaced, in accordance with Article 13 of the Statute following the
expiration of their terms of office, shall continue to sit in all phases of
the case, whatever the stage it has then reached.”

This applies even though no pleadings have been filed; it is enough that a
bare application originating the proceedings has been. A fortiori, it is not
necessary that the oral proceedings or any collegiate study of the case
should have commenced. So, as happened in the Gulfof Maine case (I.C.J.
Reports 1982, p. 3), a jadge may be elected to a chamber just weeks before
he is due to be replaced, with the result that it is the timing of the election
and not the state of work that really dictates the need for an extension. By
contrast, Article 13, paragraph 3, of the Statute, referred to in that rule,
itself provides that Members of the Court replaced at an election “shall
finish any cases which they may have begun”. Adverting to this, Article 33
of the Rules stipulates that, save as provided in Article 17 above, Members
of the Court who have been replaced in accordance with Article 13, para-
graph 3, of the Statute shall continue to sit “until the completion of any
phase of a case in respect of which the Court convenes for the oral pro-
ceedings prior to the date of such replacement”. Leaving aside arguments
relating to the restrictive reference to “any phase”, under this provision
there can be no extension unless the oral proceedings had commenced
before the normal date of retirement.

It is thus obvious that an outgoing judge elected as a member of an
ad hoc chamber before the expiry of his normal term can continue to sit in
circumstances in which an outgoing judge not so elected cannot. Can a
Rule of Court competently create such a discrepancy?

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50. DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

It seems elementary that the right to continue to sit notwithstanding
replacement is a substantive matter concerning the constitution of the
Court and is accordingly controlled by the Statute itself. The Statute
visualized only one case of extension and that was where, as provided
in Article 13, paragraph 3, the judge had “begun” a case. A judge is not
normally regarded as having “begun” a case until he has commenced the
oral proceedings!. In the case of the International Court of Justice,
a possibly wider formula has-been given by Rosenne, as follows:

“the point of time to which the verb ‘begin’ or its derivatives refers in
provisions such as Article 13, paragraph 3, of the Statute and Articles
13, paragraph 2, and 27, paragraph 5, of the [1972] Rules of Court is
the moment when the Court commences its collective deliberations,
technically called the ‘hearing’. Even when grammatically the verb
describes action by an individual judge, juridically its implication is a
general and collective study of the case by the judges together in per-
son, and not the personal study of the file by a judge individually, to
all of whom, of course, the dossier is formally transmitted by the
Registrar under Article 48 of the Rules.” (S. Rosenne, “The Compo-
sition of the Court”, in Leo Gross (ed.), The Future of the International
Court of Justice, 1976, Vol. 1, pp. 397-398.)

Different judges do, of course, begin to study a case file at different times.
Hence, as Rosenne explains, even the wider view proposed by him would
be restricted to a collegiate exercise. By contrast, Article 17, paragraph 4,
of the existing Rules extends the right to sit whether or not any collegiate
exercise has commenced.

The attempt made to vary the position as laid down by the Statute was
not surprisingly based on the parallel attempt made to grant to the parties
practical control over the selection of Members of the Court to be mem-
bers of an ad hoc chamber. Judge Jiménez de Aréchaga put it this way:

“The consideration that dictated a different solution for ad hoc
Chambers is that in this type of Chamber continued participation in
the case should not depend on remaining a Member of the Court
itself. Otherwise, a Chamber set up at the request of, and taking into
account the wishes of the parties might lose some of its members

1 Consider, for example, the general understanding reflected in the statements made
by M. Raested, in League of Nations, Committee of Jurists on the Statute of the Perma-
nent Court of International Justice, Minutes of the Session Held at Geneva, March 11th-
19th, 1929, p. 42. And see R. v. Craske, ex parte Metropolitan Police Commissioner[1957]
2 Q.B. 591, and Sookoov. Attorney General of Trinidad and Tobago (1985) 33 W.I.R. 338,
at p. 360 j, and, on appeal, [1986] 1 A.C. 63, P.C.

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51  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

merely by the passage of time.” (Jiménez de Aréchaga, loc. cit.
p. 4.)

In effect, so the argument seemed to run, since a judge owed his member-
ship of such a chamber to the wishes of the parties, those wishes ought not
to be frustrated by the expiry of his regular term. With much respect, this
does not seem to be a safe mode of proceeding. Even if there is room for
arguinent as to what is meant by the reference to “cases which they may
have begun” in the governing provisions of Article 13, paragraph 3, of the
Statute, it is not admissible to assign to that phrase one meaning in relation
to cases heard before the full Court and another in relation to cases heard
before a chamber. The form assumed by the Court in hearing a case has
nothing to do with the question whether a case has been “begun” by a
judge or not. The Court being in legal theory the same whether sitting en
banc or in chamber, the question whether a judge has “begun” a case must
be answered in the same way regardless of whether it is being heard before
the one or the other. Whatever may be the meaning of the word “begun” as
it appears in the Court’s constituent text, that meaning can only be one
and singular in relation to all judges. Different meanings may be given to
the same word appearing in different places of an instrument or indeed in
different places in the same provision of an instrument, but hardly to one
and the same word appearing in a particular place in a particular provi-
sion, and certainly not where the meanings would be contradictory, as in
this case’.

The resulting situation has an important bearing on the question
whether an ad hoc chamber formed under the new arrangements may be
regarded as a legitimate manifestation of the Court. The problem of what
to do with judicial business remaining unfinished at a prescribed retire-
ment date arises in many jurisdictions. There are several ways of dealing
with it, other than to order a rehearing. As it has been aptly put in one
jurisdiction where the question arose and had to be answered, two solu-
tions are theoretically possible:

“One of these [is] to allow the termination to take effect and merely
permit the holder of the office, now a former judge, to sit as a judge

1 Cf. the interesting but doubtful cases of Forthv. Chapman, 1 P. Wms. 663, involving
different interpretations of the same expression by different court systems, and Bones v.
Booth(1778) 2 W. BI. 1226, involving a difference between penal and non-penal applica-
tion of a given expression. Both were mentioned in Maxwell on the Interpretation of Sta-
tutes, 6th ed., pp. 558-560, but have disappeared from more recent editions. The case of a
single generic expression comprehending several species is of course a different one.

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52 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

for the purpose of completing the incomplete matters . . . The other [is]
to postpone the vacating of the office of the judge for a period to be
determined as necessary for the completion of the pending court mat-
ters and permit a judge to continue to hold his office with his powers
undiminished.” (Sookoo v. Attorney General of Trinidad and Tobago
(1985) 33 W.LR. 338, Trinidad and Tobago Court of Appeal, at p. 361,
per Warner J.A., and, on appeal, [1986] 1 A.C. 63, P.C., at p. 71.)

It seems clear that it was the first of these two theoretical solutions which
was employed in Article 13, paragraph 3, of the Statute, with the result that
a judge who, “though replaced”, is functioning by virtue of this provision,
exercises the functions but does not hold the office of a judge. He cannot
hold the office any longer because he has been “replaced” as one of the
fifteen judges of the Court by another person who has been duly admitted
to fill the same office. Now, if the Rules under consideration are valid, the
entire oral proceedings of a case before an ad hoc chamber may take place
before persons none of whom held the office of a Member of the Court
at any time during that hearing. So, once again, is this the kind of cham-
ber that the framers of the Statute had in mind when they accepted in
Article 27 that a “judgment given by any of the chambers provided for in
Articles 26 and 29 shall be considered as rendered by the Court”?

Part V. POWER OF COURT TO REVERSE ITs PREVIOUS DECISIONS

I come now to the question whether, if the foregoing is right, what, if
anything, can be done to correct the position. In the case concerning Deli-
mitation of the Maritime Boundary in the Gulf of Maine Area, Constitution
of Chamber, the Order of Court recited that the parties had been duly con-
sulted “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” (J.C.J. Reports 1982, p. 4). With occa-
sional variations, similar affirmations were later made in the case con-
cerning the Frontier Dispute (Burkina Faso/Republic of Mali), Constitution
of Chamber (I.C.J. Reports 1985, p. 7); the case concerning Elettronica
Sicula S.p.A. (ELSI), Constitution of Chamber (I.C.J. Reports 1987, p. 4);
the case concerning Elettronica Sicula S.p.A. (ELSI), Composition of
Chamber (I.C.J. Reports 1988, pp. 158-159); and the case concerning the
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (I.C.J.
Reports 1987, p. 12). The Court has therefore taken a position, even
though not reasoned, on the question whether the existing practice is in
accordance with the Statute. But does this preclude the matter from being
re-opened?

Before a practice is held to be inconsistent with a controlling provision
of the Statute or of the Rules of Court, to which it must yield if in conflict,

33
53 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

the meaning of the provision must first be established. What is evidenced
by the cases referred to is not a simple accidentally developed practice, but
a practice resting on decisions of the Court which manifest its interpreta-
tion of the applicable provisions of those instruments. To what extent
would it be proper for the Court at this stage to reverse its previous deci-
sions as to the meaning of those provisions ? This seems to be the question
here, as I believe it similarly was in the case concerning the Aerial Incident
of 3 July 1988 (Islamic Republic of Iran v. United States of America) (I.C_J.
Reports 1989, p. 145). The answer may, I think, be derived from the posi-
tion put forward by Sir Hersch Lauterpacht as follows:

“Subject to the overriding principle of res judicata, the Court is
free at any time to reconsider the substance of the law as embodied in
a previous decision ... it will not do so lightly and without good
reason. But it may do so, and it has done so.” (Sir Hersch Lauter-
pacht, The Development of International Law by the International
Court, 1958, p. 19. See also ibid., p. 20.)

That the Court should not act lightly and without good reason suggests to
my mind that the mere fact that the Court in a later case may be disposed
to see the law differently from the way in which it saw it in an earlier case
may not always suffice to warrant a reversal of its previous holding on the
same point. But I do not think the Court will be acting lightly and without
good reason if it were to reverse a previous decision on the law on the
ground that it was clearly erroneous as well as productive of grave conse-
quences for the judicial integrity of the Court of which the Court itself is
the avowed guardian. In this case, expectations based on the continuance
of the system sanctioned by the previous decisions of the Court cannot
outweigh the gravity of the consequences of those decisions for the essen-
tial nature and structure of the Court. I believe that the applicable criteria
are satisfied in this case to the point of unmistakably requiring the Court
to reverse its previous decisions and to redirect the law along its proper
course. Reasonable development of the law, even if sometimes bold, is
natural and legitimate; mere expansiveness is another matter.

PART VI. CONCLUSION AS TO THE VALIDITY OF THE EXISTING
ARRANGEMENTS RELATING TO AD Hoc CHAMBERS

The issue, summarized, is this : The fundamental character of the Court
remains what it was conceived to be by the founders of the Permanent
Court. That character was deliberately judicial and was not materially
altered by the introduction in 1945 of the institution of the ad hocchamber.
Up to 1972, the determination of which particular Members of the Court
should sit on a chamber was exclusively a matter for the Court itself. Was
it legally competent for the Court, by an exercise of its subordinate and

54
54 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

limited rule-making power, to bargain away a substantial, if not decisive,
part of this faculty of choice to potential litigants in exchange for the pros-
pect of greater use of ad hoc chambers? Was the fundamental judicial
character of the Court consistent with giving the parties a share in the
exercise of its power to select its regular personnel to sit in a particular
case? Even in cases 6f-negative selection by exclusion for cause, though
something in the nature of a right of recusation in fact exists, the Statute
cautiously refrained from explicitly conferring such a right on the parties
(see Procés-Verbaux, 1920, op. cit., p. 472, per Lord Phillimore; P.C.LJ.,
Series D, No. 2, p.72, per Lord Finlay; Stauffenberg, op. cit., p.76; Hudson,
The Permanent Court of International Justice, 1943, pp. 173 and 370; Louis
Favoreu, “Récusation et administration de la preuve devant la Cour inter-
nationale de Justice”, Annuaire français de droit international, 1965,
Vol. XI, pp. 236 ff.; and Geneviéve Guyomar, Commentaire du Réglement
de la Cour internationale de Justice: Interprétation et pratique, Paris, 1983,
pp. 195-197). Did it authorize the Court by Rules of Court to give them a
right of positive selection? I do not think so.

The question then is which shall prevail — the practical utility of a pri-
vately selected chamber claiming to be a legitimate manifestation of the
Court, or the grand original design of the Court as a court of justice serv-
ing an integrated world and seen by that world to be serving it as such a
court? While it cannot be inadmissible today to recall the great vision
which animated yesterday’s creators of a judicial edifice of whose integ-
rity the Court is the proud guardian, defenders of the new system may well
call in aid Judge Lauterpacht’s statement reading:

“A proper interpretation of a constitutional instrument must take
into account not only the formal letter of the original instrument, but
also its operation in actual practice and in the light of the revealed
tendencies in the life of the Organization.” (Voting Procedure on
Questions relating to Reports and Petitions concerning the Territory of
South West Africa, I.C.J. Reports 1955, p. 106.)

Even so attractively designed an invitation to constitutional creativity may
not however settle doubts as to whether the law-making powers of the
Court can ever properly extend to enable it by an act of levitation to shift
the ground on which it has been standing. It was Judge Lauterpacht him-
self who noted “the principle that an organ cannot act except in accord-
ance with its constituent instrument” (Certain Norwegian Loans, I.C.J.
Reports 1957, p.45). If this principle has indeed been breached in this case,
to sustain the new arrangements relating to ad hoc chambers would not
only violate the Court’s own declaration that its duty is “to interpret .. .,
not to revise” (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, Second Phase, I.C.J. Reports 1950, p. 229); it would go beyond
that to bring into play the more ominous words used by the Permanent

55
55  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

Court of International Justice when it took the position that to uphold
a certain interpretation “would be, not to construe but to destroy ...”
(Serbian Loans, P.C.IJT. Series A, No. 20/21, p. 32). It seems to me
that what would be destroyed here would be a concept of fundamental
importance to the institutional integrity of the Court as it was conceived
to be. This is the problem lying at the root of this whole case, as brought to
a head by the present procedural difficulties.

In sum then, I agree with Nicaragua that to

“consider that a challenge to the formation of the Chamber ...
should be aired before the same Chamber would certainly be a
complete surrender of the sovereign will of the intervening party
to the will of the original parties as reflected in the formation of the
Chamber” (letter to the Registrar from the Agent for Nicaragua of
1 February 1990).

But what are the true implications of the extent to which “the will of the
original parties [is] reflected in the formation of the Chamber”? In my
opinion, reached with reluctance but with conviction, the methods by
which the members of the Chamber have been selected do not satisfy the
criteria required to enable it to discharge the judicial mission of the Inter-
national Court of Justice, considered as a court of justice, in relation to the
Applicant; and the fundamental reason for this is that the Chamber has
been constituted not in accordance with the Statute, but in accordance
with an unauthorized arrangement under which the Court has been
essaying to transform itself into the Permanent Court of Arbitration, or
something akin to it. This represents a major flaw which the Court, as
the avowed guardian of its own judicial integrity, cannot correctly over-
look. The existing practice may well continue unabated. My views may
make no difference. It was nevertheless my duty to state them.

Part VII. THE NICARAGUAN APPLICATION CONSIDERED ON THE
ASSUMPTION OF THE LEGALITY OF THE EXISTING ARRANGEMENTS

Assuming that I am wrong in the foregoing, how should the Nicaraguan
Application be determined? It seems to me that, even if the original con-
stitution of the Chamber was valid in relation to the existing Parties, the
capacity of the Chamber to act judicially, as it stands, in relation to Nicar-
agua would still be seriously in issue.

In its Application, as pointed out in the Order made by the Court,
Nicaragua emphasized that its “request for permission to intervene. ..isa
matter exclusively within the procedural mandate of the full Court”. The
word “exclusively” seems reasonably to convey that Nicaragua does not

56
56 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

wish its Application to be considered by the Chamber. Developing this, in
his letter to the Registrar of 1 February 1990, the Agent for Nicaragua
stated the following:

“One of the main changes introduced in the 1972 Rules of Court
was in relation to the composition of ad hoc Chambers. As former
Registrar Hambro said, the changes in the Rules

‘means that the parties are free to make known exactly which indi-
vidual judges they desire on the Bench for that case’i.

In effect, Article 26, paragraph 1, of these Rules indicates that the
President of the Court ‘shall consult the agents of the parties regard-
ing the composition of the Chamber’.

The role of the parties in organizing the ad hoc Chamber is further
emphasized by the fact of the continuation of a member of an ad hoc
Chamber beyond his term of office.

To consider that a challenge to the formation of the Chamber,
made because of the extent of the competence ratione materiae with
which it was anointed, should be aired before the same Chamber,
would certainly be a complete surrender of the sovereign will of the
intervening party, to the will of the original parties as reflected in the
formation of the Chamber.

This principle [of the equality of States] which demands respect of
the sovereign equality of Nicaragua would be inevitably affected if it
were decided that the only intervention possible was before the
ad hoc Chamber. Hence, Nicaragua can only appear before the full
Court if this principle is to be respected.

1 Edvard Hambro, ‘Will the Revised Rules of Court Lead to Greater Willing-
ness on the Part of Prospective Clients ?’, in Leo Gross (ed.), The Future of the
International Court of Justice, 1976, p. 368.”

Clearly, Nicaragua’s primary concern is with the extent to which the
formation of the Chamber reflected the will of the existing Parties. It does
not wish to go to the Chamber as it stands, whether for the purpose of
seeking permission to intervene or for the purpose of seeking a reforma-
tion of the Chamber. The situation so presented may be considered, first,
at the level of general principles, and then at the level of particular proced-
ural rules.

Viewing the matter at the level of general principles, I think it is first
necessary to consider the relationship between the full Court and a cham-
ber of any kind. No doubt, unless a chamber is indicated by the context, a
reference in the Statute to the “Court” is a reference to the full Court, and
evidently there are differences between these two bodies, but these differ-

37
ST DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

ences are those between related and not mutually alien entities. In prin-
ciple, the same Court is acting whether it acts through the full Court
or through a duly established chamber. The first chamber judgment, given
in 1924, began with the carefully chosen words, “The Court, sitting
as a Chamber of Summary Procedure ...”, and ended with a dispositif
beginning significantly with the words, “For these reasons the Court
decides...” (Treaty of Neuilly, P.C.I.J., Series A, No. 3, pp. 4 and 9 respec-
tively). By Article 1 of the relevant Special Agreement, the case had been
correspondingly submitted by the parties “to the Permanent Court of
International Justice, in its Chamber for summary procedure . . .”
(P.C.LJ., Series C, No. 6, p. 9). In effect, the functions of a chamber are as
much the functions of the “Court” as are those of the full body. Thus,
however desirable it may be for a chamber to be left to discharge its
actual functions as autonomously as possible, the relationship between it
and the full Court is not one between strangers. Nicaragua has drawn
attention to significant instances of action taken by the full Court in
relation to a chamber even after the latter has been established. The full
Court, having set up a chamber, cannot interfere in its actual work; but
I think it retains a continuing responsibility to ensure that the composi-
tion of the chamber is such as to enable it to function with a sufficient
degree of procedural rectitude in order to qualify it as a convincing mani-
festation of the Court as a court of justice. If I mistake not, something of
this view is implicit in the reference in the Court’s Order to its “power to
form a chamber to deal with a particular case, and consequently to
regulate matters concerning its composition”.

Under the system as it has so far worked, an ad hocchamber, being com-
posed of judges whose selection has been substantially influenced, if not
determined, by the original parties (a proposition which cannot credibly
be controverted), cannot function as a normal court of justice either in
relation to an application for permission to intervene or, if the application
is granted, in relation to the applicant as an intervening party to the case
on the merits. A request for permission to intervene cannot but be
coupled, as in this case, with a request for an appropriate reformation
of the chamber. Ex hypothesi, the latter is beyond the competence of the
chamber, which is thus incapable of dealing with either branch of the
application.

It may well be that the original parties and the applicant (if successful)
may never agree on matters essential to the reformation of the chamber,
such as the number of members. In that event, the proceedings are halted;
but, unfortunate as this may be, it is, in my opinion, a lesser thing than that
the proceedings should be conducted at variance with fundamental
norms applicable to a court of justice, as distinguished from an arbitral
tribunal.

I accept as elementary that in principle it is the tribunal with compe-

58
58  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

tence over the merits which should also determine incidental proceedings,
including applications for permission to intervene. But another elemen-
tary rule is that in applying a rule — especially an elementary rule — itis
important to take account of the particular circumstances. Subject to this,
I think J can agree with the submission of Honduras that —

“the correct principle is . .. that any Court or Tribunal, with compe-
tence over the merits of the case, must (within the limits of its Statute)
be free to decide upon the procedures appropriate to the case, and
such decision has to be taken in the light of the actual issues of sub-
stance raised in the case, not as an abstract matter” (letter to the
Registrar from the Agent for Honduras of 15 January 1990).

That, no doubt, represents the norm. However, the present case represents
anything but the norm. Having regard to the methods by which the Cham-
ber was formed, it is difficult to appreciate how the Applicant can with
any show of justice be left with no option but to go to that body. I see no
convincing answer to Nicaragua’s submission that to require it to submit
to such a forum would involve “a complete surrender” of its will “to the
will of the original parties as reflected in the formation of the Chamber”
and a resulting breach of the principle of equality of States. In this respect,
the position here seems materially and qualitatively different from that in
the case of the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Appli-
cation to Intervene, Judgment (I.C.J. Reports 1981, p. 6) in which it was held
that a State applying to the full Court for permission to intervene had no
right to appoint an ad hoc judge to that Court for the purpose of hearing
the application, even though the Court included ad hoc judges appointed
by the existing parties in the ordinary way. In my opinion, such is the dis-
tance between the circumstances of that case and those of the present case
(in which the selection of all the members of a five-member chamber was
substantially, if not decisively, influenced or determined by the existing
Parties) as to leave no juridically defensible alternative to the Application
in this case having of necessity to be heard by the full Court.

The Court has cited the Haya de la Torre principle to the effect that
“every intervention is incidental to the proceedings in a case” (CJ.
Reports 1951, p. 76). In that case (decided under Article 63 of the Statute),
the question was whether the purported intervention “actually relate[d] to
the subject-matter of the pending proceedings” (ibid.). That is not the
question here. While I accept that the principle would ordinarily mean
that an application for permission to intervene under Article 62 of the Sta-
tute should be made to the tribunal dealing with the merits of the matter,
this presupposes that the tribunal is one which can act judicially in rela-
tion to the application. That case was not concerned with the kind of
issues arising here as to what should be done to give real effect to the

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59  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

applicant’s right to apply where the tribunal, which should ordinarily act,
does not satisfy the generally recognized criteria applicable to a court of
justice in so far as the applicant at any rate is concerned. In particular, that
case did not involve the concomitant application of the principle of equal-
ity of States which would ineluctably be breached if Nicaragua’s only
remedy was to go before a chamber composed of members selected as
mentioned above. It is difficult to justify this course by reference to the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, without a
considerable and unpersuasive extension of the latter.

If, for the reasons given by me, the Chamber cannot entertain the Appli-
cation, and if, for the reasons given by the Court, the Court cannot, it
would follow that there is no effective right to apply for permission to
intervene in a matter pending before an ad hoc chamber. But I see little
justification for holding that the right conferred by Article 62 of the Sta-
tute to make such an application can be denied by simply bringing a case
before such a chamber rather than before the full Court. A system which
turns away a State as a stranger at the gate even if it can prove that “it has
an interest of a legal nature which may be affected by the decision in the
case” has little claim in modern times to speak in the name of a court of
justice, whatever other style it may affect and whatever might have been
the earlier position in international adjudication. However, if there is a
right to apply for permission to intervene, it must be a real right capable of
being asserted and vindicated by normal judicial process.

It is true that under Article 59 of the Statute the decision of the chamber
is not binding on a non-party. That, however, does not diminish the
import of the fact that Article 62, paragraph 1, of the same Statute gives
a non-party a right in law to request permission to intervene if “it has
an interest of a legal nature which may be affected by the decision
in the case”, whether the requested permission is ultimately granted or
not being another matter (see Sir Gerald Fitzmaurice, The Law and Pro-
cedure of the International Court of Justice, 1986, Vol. 2, p. 552; and
Shigeru Oda, “Intervention in the International Court of Justice”, in
Festschrift fiir Hermann Mosler, 1983, pp. 645-647). A State does not
have to exercise that right; but, if it elects to do so, it is entitled to have
its application determined judicially by a court of justice. I fail to see
how this can happen where the selection of the members of the deciding
tribunal was influenced, if not in substance determined, by the existing
parties.

Viewing the matter now at the level of the procedural rules, it is to be
observed that, in the absence of any provision in the Statute or the Rules
dealing specifically with applications for permission to intervene in a
chamber case, and leaving aside general principles, the argument against
Nicaragua is based largely on the circumstance that Article 90 of the Rules
of Court applies in relation to chambers the provisions of Articles 81, 83,
84 and 85 of the Rules (see the second recital of the Order of Court). These

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60 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

provisions lay down rules of procedure for carrying out the functions of
the Court under Article 62, paragraph 1, of the Statute concerning the
right to apply for permission to intervene.

Although the rule-making provisions of Article 30, paragraph 1, of the
Statute speak only of the “Court” framing “rules for carrying out its func-
tions”, it being the case that the functions of a chamber are the functions of
the Court, it was fully competent for the Court acting under that provision
to make rules of procedure relating to chambers also. I will assume, with-
out deciding, that the combined effect of Articles 81, 83, 84, 85 and 90 of
the Rules of Court is to regulate proceedings relating to applications for
permission to intervene in chamber matters on the basis that such applica-
tions are to be made to the chamber concerned. But, in thus providing for
such applications to be made to the chamber concerned, the Rules con-
templated a chamber so constituted as to be capable of functioning as a
court of justice in relation to the applicant. For the reasons given, the
Chamber in this case cannot be considered as a normal court of justice in
relation to the Applicant. In my opinion, the Rules do not and cannot
require such an applicant to submit to such a chamber.

To what forum should the Applicant then turn ? On the safe assumption
that Article 62 of the Statute gives the Applicant a real right to apply for
permission to intervene, the common sense view would be that the Appli-
cant must of necessity apply to the full Court. This common sense view
accords with the legal situation. As has been noticed, the Rules of Court
are made under Article 30, paragraph 1, of the Statute which authorizes
the Court to “frame rules for carrying out its functions”. It is the function
of the International Court of Justice to administer justice, not injustice;
and, correspondingly, judges who make Rules of Court are to be credited
with the intention of enabling the Court to do justice, not injustice. Hence,
a Rule of Court should not be construed or applied as being legally effec-
tual to create injustice, such as that which I fear would be created by con-
struing the existing Rules as requiring Nicaragua to submit its Applica-
tion to the existing Chamber notwithstanding the methods by which it was
constituted.

Since, in my view, the Rules do not effectively provide for the case, the
competence to deal with an application for permission to intervene in
such a case falls to be considered as remaining with the full Court in keep-
ing with the wording of Article 62 of the Statute. Under paragraph 1 of
this, the request for permission to intervene is to be made to the “Court”.
Under paragraph 2, the decision is made by the “Court”. Article 3 of the
Statute makes it clear that references to the “Court” are references to the
full Court. The Court may of course act through a chamber in proper
instances. But where, as here, the Court cannot properly act through a
chamber, the Court must of necessity act by itself. The jurisdiction

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61  DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. SHAHABUDDEEN)

belongs primarily to the Court and is retained by it to the extent that it has
not, for any reason, become effectually exercisable by the chamber.

I appreciate that, by reason of the Special Agreement, it may be said that
the case is pending before the Chamber and not before the Court. Butif, as
I consider, the right to apply for permission to intervene is applicable in
relation to a case pending before such a chamber, this must be so because

“the case” is in legal theory pending before the “Court” within the mean-
ing of Article 62 of the Statute.

It remains for me to refer to the following statement made in the Order
of Court:

“Whereas furthermore a State which has submitted a request for
permission to intervene on which a decision has not yet been taken
‘has yet to establish any status in relation to the case’ (Continental
Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene,
Judgment, I.CJ. Reports 1981, p. 6, para. 8), and therefore a State
requesting such permission must, for the purposes of the decision
whether that request should be granted, take the procedural situation
in the case as it finds it”.

In my opinion, the question raised in the case referred to by the Court, as
to whether an applicant to the full Court for permission to intervene has a
right to appoint an ad hoc judge to that Court before it hears the applica-
tion, was, as submitted above, not of the same order as the question raised
in this case as to whether such an application may competently be heard
by a chamber the selection of all of whose members was influenced, if not
practically determined, by the existing parties. The issue arising in this
case concerns the capacity of the Chamber to act judicially in relation to
the hearing and determination of the Application, having regard to the
methods by which the Chamber was constituted and to universally
accepted judicial standards. The issue so raised is too vital, too weighty,
and too substantial for me to bring myself to accept that it may be dis-
posed of as a mere “procedural situation” within the Court’s dictum that
an applicant for permission to intervene “must ... take the procedural
situation in the case as it finds it”. It is on this fundamental issue, and the
proper judicial approach to it, that I have the misfortune to disagree with
the Court.

In sum, but with respect, I consider that the Court has misconceived
Nicaragua’s case. The essence of that case, as I understand it, is that the
methods by which the Chamber has been formed entitle Nicaragua to take
the view that the Chamber cannot exercise the judicial functions of the
International Court of Justice in so far as Nicaragua is concerned. The
Order of Court nowhere addresses this problem. The Haya de la Torre
principle relied upon by the Court does not by itself suffice to provide a
solution to that problem. A solution, if there is one, must, in the circum-
stances of this particular case, take account of the principle of equality of
States, and there is no possibility of satisfying this principle without

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appropriate action taken by the full Court within the framework of the
very special relationship existing between itself and the Chamber.

For these reasons, I would uphold the contention of Nicaragua that the
full Court has jurisdiction to entertain its Application. It is possible that
the conclusion so reached is not altogether neat. But it often happens that
the law has to balance the operation of one principle against that of
another, and sometimes in peculiar circumstances. If the result of this pro-
cess of mutual accommodation does not give perfect satisfaction in this
case, the difficulty lies not in the conclusion but in the premise, namely,
that the existing arrangements relating to ad hocchambers are valid. In my
opinion, they are not; and I fear that the problems inhering in the opposite
view are not concluded with today’s Order.

I end, as I began, by affirming my view that the ad hoc chamber system
provided for by Article 26, paragraph 2, of the Statute is a valuable one.
Though delays have not been unknown, the system should be capable of
affording the benefit of simplicity without the risk of fractionalizing the
functioning of the Court. In this latter respect, it seems to me that there is
something of lasting worth in the stress which the Informal Inter-Allied
Committee laid upon

“the unity and cohesion of the Court as an institution, its central
direction and the uniformity and continuity of its jurisprudence —
everything, in fact, that is implied in the conception of a single Perm-
anent Court of International Justice” (“Report of the Informal Inter-
Allied Committee on the Future of the Permanent Court of Interna-
tional Justice, February 10, 1944”, American Journal of International
Law, Supplement, 1945, Vol. 39, p. 33). 5

I am not convinced that in the long term (for it is this which must provide
the true institutional perspective) anÿ risk to these values is necessarily
negated by experience of the working of the new arrangements so far. In
principle, some of the problems which exercised the mind of the Informal
Inter-Allied Committee when considering the subject of regional cham-
bers are inherent in the methods by which an ad hoc chamber is formed
under the existing arrangements. But for those methods, I should have
had no difficulty supporting the Order made by the Court today. It may be
that those methods can be usefully reviewed. At the moment, however, I
feel obliged respectfully to dissent.

(Signed) Mohamed SHAHABUDDEEN.

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