1 Art. 31 of the Statute of the International Court of Justice reads as follows:

“ 1 Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court.

“ 2 If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5.

“ 3 If the Court includes upon the Bench no judge of the nationality of the parties,each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article.

“ 4 The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties.

“ 5 Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court.

“ 6 Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfil the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of the present Statute. They shall take part in the decision on terms of complete equality with their colleagues.“

2 At the meetings of the Committee of Jurists in 1920, for instance, M. de Lapradelle of France suggested that “if both parties in interest are represented on the bench the national judges may keep their seats,” and that “if only one of the parties is represented the national judge must give up his seat.” He even proposed that national judges should be replaced by assessors who would have only advisory powers so that they would not be able to offset the decision of the Court by their votes. See Permanent Court of International Justice, Advisory Committee of Jurists, Procès- Verbaux of the Proceedings of the Committee, June 16th-July 24th, 1920, with Annexes, pp. 172, 198, 535, 537-538 (The Hague: Van Langenhuyson Brothers, 1920). See also, for other similar suggestions, ibid. pp. 121, 158-159, 169-170, 200, 529, 531-532, 534, 721; 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 of International Justice, pp. 33-34, 36, 48, 231 (Geneva: 1921); J. B. Scott (ed.), The Eeports to the Hague Conferences of 1899 and 1907, pp. 231, 253 (Oxford: At the Clarendon Press, 1917); 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, pp. 39, 75, 85-86, 135, 205, 231-232, 241, 258-259, 283 (London: 1920); 14 U.N.C.I.O. Docs. 113, 114, 116 (New York: U.N. Information Organization, 1945).

3 See Hans Wehberg, The Problem of the International Court of Justice 55-64 (Oxford: At the Clarendon Press, 1918); H. Lauterpacht, The Function of Law in the International Community 231-241 (Oxford: At the Clarendon Press, 1933); William Samore, “National Origins v. Impartial Decisions: A Study of World Court Holdings,” 34 Chicago-Kent Law Review 207 (1956); 2 Oppenheim, International Law 78-79 (7th ed., by H. Lauterpacht). In this connection, the following statement has been made: “Of all influence to which men are subject, none is more powerful, more persuasive or more subtle than the tie of allegiance that binds them (judges) to the land of their homes and kindred and to the great sources of the honors and performances for which they are so ready to spend their fortune and to risk their lives.” See P.C.I.J., Series E, Annual Reports of the Permanent Court of International Justice, No. 4, p. 75 (Leyden: A. W. Sijthoff, 1927-1928).

4 For the criticisms of ad hoc judges, see M. A. C. Chagla, once Indian ad hoc judge at the Court, “Rule of Law and the International Court of Justice,” 1960 Proceedings, American Society of International Law 242; E. Hambro, “Function of the International Court of Justice in the Framework of the International Legal Order,“The U. N.: Ten Years’ Legal Progress 101 (ed. by Gesina H. J. van der Molen and others; The Hague: Nederlandse Studentenvereniging voor Wereldrechtsorde, 1956); H. F. van Panhuys, The Role of Nationality in International Law 214-215 (Leyden: A. W. Sijthoff, 1955); S. Rosenne, The International Court of Justice: An Essay in Political and Legal Theory 148 (Leyden: A. W. Sijthoff, 1957); A. S. de Bustamante, The World Court 149 (N. Y.: Macmillan Co., 1925); E. Reut-Nicolussi, “ T h e Eeform of the Permanent Court of International Justice,” 25 Grotius Society Transactions 144-149 (1940).

5 Annuaire de l'Institut de Droit International 427 (1954, I ).

6 Ibid. (II) 289-290. At a meeting of the Institute at Siena in 1952, a Special Committee was appointed with Max Huber as its chairman. The Huber Committee made a critical report about administrative measures of the Court at the meeting of the Institute at Aix-en-Provence on April 26, 1954.

7 The Court of Justice of the European Coal and Steel Community was established in 1953. This Court was replaced in 1958 by the Court of Justice of the European Communities. The present Court is an institution common to all three communities: the Common Market, the Coal and Steel Community and Euratom, perhaps a pledge of more unity to come. See A. M. Donner, “The Court of Justice of the European Communities,” in Legal Problems of the European Economic Community and the European Free Trade Association 66 (Int. & Comp. Law Q. Suppl. Publication, No.1, 1961).

8 See Art. 32 of the Treaty Constituting the European Coal and Steel Community, 46 A.J.I.L. Supp. 117 (1952). See, for the composition of the Court in 1954, D. G. Valentine, The Court of Justice of the European Coal and Steel Community 4-5 (The I [ague: Martinus Nijhoff, 1955).

9 31 contentious cases came before the P.C.I.J. from 1922 to 1946, of which 29 cases were participated in by national judges. Of 27 advisory opinions given by the Court for its life, 13 were given after Sept. 7, 1927, when Art. 31 of the Statute of the Court began to be applied to advisory opinions on questions asked relating to pending disputes between states. (See Art. 68 of the Statute of the Court and Arts. 82 and s:i of the Rules of Court.) Of the 13, only nine advisory opinions were treated as involving questions relating to existing disputes between states so that national judges might be permitted. In the other four, the Court decided that the questions submitted did not relate to existing disputes between states. In one of the nine opinions, both parties to the existing dispute had regular judges of their nationalities on the bench and therefore no ad hoc judges were appointed. In each of three opinions, only one party had a judge of its own nationality on the bench and therefore the other party chose an ad hoc judge. In three other opinions, the Court included no regular judges of the nationality of either party, and therefore both parties appointed ad hoc judges. In one opinion, the Interpretation of the Greco-Turkish Agreement of December 1, I!)26 (1928), both parties waived their rights to appoint ad hoc judges. In the advisory opinion concerning the Customs Regime Between Germany and Austria (1931), several states were acting in the same interest. In this instance, the Court already included on the bench regular judges of nationalities of both parties and therefore no ad hoc judges were appointed. In the I.C.J., national judges (both regular and ad hoc) participated in 25 of a total of 29 contentious cases rendered as of the end of August, 1967, and national judges participated in no advisory opinions given by the new Court. They had cast a total of 203 votes.

10 Some of the cases have presented more than one question for decision.

11 The national judges and the cases in this pattern are as follows: Judge D. Anzilotti in The S.S. “Wimbledon” judgment (1923), Judge Robert B. Finlay in the judgment of the Mavrommatis Palestine Concessions (1924), Judge M. Rostworowski in the advisory opinion relating to the Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory (1932), and Judge Anzilotti in the judgement of the Interpretation of the Statute of the Memel Territory, Merits (1932)

12 Judge Eostworowski in the advisory opinion relating to Access to German Minority Schools in Upper Silesia (1931); ad hoc Judge Eostworowski in both judgments of Certain German Interests in Polish Upper Silesia, Preliminary Objection (1925), and Merits (1926); ad hoc Judge Hermann-Otavsky in the judgment of Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University) (1933); ad hoc Judge I. Daxner in the Corfu Channel judgment, Preliminary Objection (1948); ad hoc Judge J. J. Caicedo Castilla in three judgments of Asylum, Duty of Peru (1950); Asylum Convention (1950); and Bequest for Interpretation of the Judgment of 20 Nov. 1950 in the Asylum Case (1950); ad hoc Judge L. Alayza y Paz Soldán in the judgment of Haya de la Torre (1951); ad hoc Judge M. A. C. Chagla in the judgment of Eight of Passage Over Indian Territory, Preliminary Objection (1957); and ad hoc Judge F. Urrutia Holguín in the judgment of Arbitral Award Made by the King of Spain on 23 December 1906 (1960).

13 See, for instance, the dissenting opinion of ad hoc Judge Daxner in the Corfu Channel judgment, Preliminary Objection (1948), between Great Britain and Albania where he, as the sole dissenter from the judgment, pointed out that since Albania was not a party to the Statute of the Court, she had a right to ignore the jurisdiction of the Court, although the Albanian Government previously agreed to a recommendation of the Security Council of the United Nations that the dispute be submitted to the Court for final adjudication, [1948] I.C.J. Eep. 17, 33-45; ad hoc Judge Eostworowski, as the only dissenter from the judgment of Certain German Interests in Polish Upper Silesia, Preliminary Objection (1925), also in his dissenting opinion rejected the jurisdiction of the Court, just as his government did, although Germany and Poland agreed, in the Convention concerning Upper Silesia signed at Geneva on May 15, 1922, that any dispute concerning the matter should be submitted to the P.C.I.J., P.C.I.J., Series A, No. 6, pp. 31-41 (Leyden: A. W. Sijthoff, 1925); and ad hoc Judge M. E. C. Armand-Ugon, as one of the dissenters in the judgment in the case concerning the Barcelona Traction, Light & Power Company, Limited, Preliminary Objection (1964) between Belgium and Spain, rejected the jurisdiction of the Court in his dissenting opinion, although both governments signed a special agreement, the Treaty of Conciliation, Judicial Settlement and Arbitration between Belgium and Spain on July 19, 1927, by which disputes shall be referred to an international court. See [1964] I.C.J. Bep. 116-164. The special agreement here means not only one that is provided for in Art. 36 of the Statute of the Court but also any previous agreement by which a dispute would be submitted to an international court.

14 Ad hoe Judge Caicedo Castilla did not write dissenting opinions in two instances: Asylum Judgment, Asylum Convention (1950), and Judgment on Bequest for Interpretation of the Judgment of 20 Nov. 1950 in the Asylum Case (1950). Nor did ad hoc Judge Soldan write a dissenting opinion in the Haya de la Torre judgment (1951).

15 For instance, Judge Finlay of Great Britain, as a regular judge of the old Court, voted five times in four contentious cases and one advisory opinion involving Ms government; once in the first pattern, once in the second pattern and three times in the third pattern. He was a widely admired judge. See P.C.I.J., Series E, No. 5 (1928- 1929), p. 22. Judge Anzilotti of Italy voted twice in the first, once in the second, twice in the third and none in the fourth patterns, and always emphasized the need for imparitality. See ibid. p. 19. Judge Sir Arnold McN/air of the new Court, in fifteen votes where Great Britain was a party to disputes, voted four times in the second pattern, seven in the third and four in the fourth. Although he voted four times against a majority of the Court which was not in favor of his government, Lord McNair has been widely regarded as a judge of independence. These three men are by no means alone in'the high sense of responsibility displayed in the discharge of their duties.

16 For instance, ad hoc Judge Caicedo Castilla of Colombia cast no vote in the first pattern, two votes with the unanimous majority of the new Court in the second pattern, one vote in the third pattern, and five votes in the last pattern. Of his five dissenting votes, two were not even accompanied by dissenting opinions, and a careful examination of those opinions which he wrote shows a considerable reliance on political rather than judicial arguments; he contended, for instance, that Colombia's position was a defense of the general interest of the Latin American Community. See Asylum Case, [1950] I.C.J. Eep. 381. With a few exceptions, ad hoc judges of both the old and new Court have acquitted themselves in much the same manner as the Colombian ad hoc judge.

17 Under the old Court, there was no contentious case in which a party to a dispute before the Court named as ad hoc judge a person who did not possess its nationality. In three advisory opinions, however, Dr. “Victor Bruns, a German national, was appointed by Danzig to serve as ad hoc judge in the opinions on the Jurisdiction of Danzig Courts (1928), the Polish War Vessels in Danzig (1931), and the Polish Nationals in Danzig (1932). In the last two hearings, moreover, he sat as ad hoc Judge, although the Court included upon the bench Judge W. Schücking, also a German national. See P.C.I.J., Series A/B, No. 43, p. 128 (Leyden: A. W. Sijthoff, 1931); ibid. No. 44, p. 4. Although it was not prohibited by Art. 31 of the Statute, this practice seemed in violation of the principle embodied in Art. 10 of the Statute which excluded the election by the Assembly and the Council of the League of Nations of two nationals of the same state, and a general conception that the Court was to be “composed of a certain number of judges of different nationality.” See P.C.I.J., Series D, Acts and Documents Concerning the Organization of the Court, 3rd Add. to No. 2. Elaboration of the Rules of Court of March 11, 1936, p. 22 (Leyden: A. W. Sijthoff, 1936). In the new Court, the nine instances were as follows: Igor Daxner, a Czechoslovak national, was appointed by Albania for two cases; P. Guggenheim, a Swiss national, by the Government of Liechtenstein; J. Zourek, a Czechoslovak national, by Bulgaria; E. Ago, an Italian, by Honduras; P. Urrutia Holguin, a Colombian, by Nicaragua; Sir Louis Mbanefo, a Nigerian, by the Governments of Ethiopia and Liberia for two cases; and M. E. C. Armand-Ugon, a Uruguayan, by Spain. See [1948] I.C.J. Eep. 15; [1949] Hid. 4, 244; [1955] ibid. 4; [1959] ibid. 127; [1960] ibid. 192; [1962] ibid. 319; [1964] ibid. 9; and [1966] ibid. 9.

18 In this case where the judgment of the Court was reached by a vote of six to six, with the President casting the deciding vote in favor of the contentions of Turkey, ad hoc Judge Peizi-Daim of Turkey concurred in the judgment, while Judge Andre” Weiss of France, a party to the dispute, opposed it. See Series A, No. 10, p. 33

19 The judgment of the Court in this case was also reached by the President casting a deciding vote in favor of the contentions of South Africa to break a tie of 7 to 7. Here ad hoc Judge van Wyk of South Africa was in the majority, while ad hoc Judge Louis Mbanefo for Ethiopia and Liberia voted with the minority of the Court. See [1966] I.C.J. Eep. 51.

20 In the judgment in the case of the Mavrommatis Palestine Concessions (1924), the decision was reached by a vote of 7 to 5. The vote of ad hoc Judge M. Caloyanni of Greece was cast in favor of the decision rendered, while national Judge Finlay of Great Britain dissented from the decision. See Series A, No. 2, p. 37. In the judgment in the case of Free Zones of Upper Savoy and the District of Gex (1932), the decision was taken by a vote of 6 to 5. Ad hoc Judge E. Dreyfus of France dissented from the decision, while national Judge Max Huber of Switzerland voted with the majority of the Court. See Series A/B, No. 46, pp. 171-173. The judgment in the Oscar Chinn Case (1934) was rendered by a vote of 6 to 5. From this judgment national Judge Cecil Hurst of Great Britain dissented, but national Judge Rolin-Jaequemyns of Belgium voted for it. See Series A/B, No. 63, pp. 89-90. In the advisory opinion concerning the Customs Eegime Between Germany and Austria (1931), the decision was reached by a vote of 8 to 7. Two national Judges, Henri Fromageot of France and Anzilotti of Italy, concurred in the opinion, while national Judge Schiicking dissented from it. See Series A/B, No. 41, pp. 53-54. The advisory opinion relating to the Interpretation of the Greco-Bulgarian Agreements (1932) was reached by a vote of 8 to 6. In this opinion, ad hoc Judge Th. Papazoff of Bulgaria dissented from the opinion, but ad hoc Judge Caloyanni voted for it. See Series A/B, No. 45, p. 88. The advisory opinion with respect to the Interpretation of the Convention of 1919 Concerning Employment of Women During the Night (1932) was given by a vote of 6 to 5. National Judge Finlay voted for the opinion, but national Judge Schiicking dissented from it. See Series A/B, No. 50, p. 382. In the first South West Africa Case, decided by a vote of 8 to 7, ad hoc Judge van Wyk dissented from the judgment, while ad hoc Judge Mbanefo voted for it. See [1962] I.C.J. Bep. 348.

21 See Art. 13 of the Eules of Court.

22 The difference between arbitration and adjudication is not so much in function as in organization and procedure. This was well pointed out by Elihu Boot, Secretary of State, in his instructions to the U. S. Delegation to the Second Hague Conference in 1907 as follows: “ I t has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents…. If there could be a tribunal which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions … there can be no doubt that nations would be much more ready to submit their controversies to its decision than they are now to take the chances of arbitration… . [Such a court should be] a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, and who will devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility. These judges should be so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented.” See 1907 TJ. S. Foreign Belations 1135, or B. Bacon and J. B. Scott (eds.), Men and Politics, Addresses by Elihu Root 307-308 (Cambridge: Harvard University Press, 1926). It may be noted, however, that since the 19th century, especially after the arbitration arising out of the Alabama Claims, the judicial nature of arbitration may be said to have been stressed, and in the great majority of awards it has been possible to find the application of a legal principle. See J. L. Brierly, The Law of Nations 251-252 (4th «d. Oxford: At the Clarendon Press, 1949); E. T. Hedge, “The Judicial Basis of Arbitration,” 7 British Tear Book of International Law 119 (1926); J. H. Ealston, The Law and Procedure of International Tribunals xxxvi (Stanford: Stanford University Press, 1926); 1 Moore, International Adjudications, Ancient and Modern lxxxixxci (New York: Oxford University Press, 1929).

23 Art. 30 of the Eules of 1926 and 1931, and Art. 29 of the Rules of 1936 and 1946. Even a deputy judge sitting as an ad hoc judge was not counted for the requirements of a quorum. See Series E, No. 3 (1926-1927), p. 188.

24 At meetings of the Committee of Jurists in 1920 it was argued that, without judges from the Great Powers, the Court would be impracticable, and that the people of litigating states would not accept decisions of the Court if their countries were not represented. See P.C.I.J., Advisory Committee of Jurists, Proces-Verbaux of the Proceedings of the Committee, June 16th-July 24th, 1920, with Annexes, pp. 28-29, 105, 120, 134. In its report, the Committee of Jurists admitted that it would be logical that national judges abstain from sitting and that its proposed court with the system of national judges “more nearly resembles a court of arbitration than a national court of justice,” but gave the following justification of its recommendation of the system of national judges: ‘ ‘ [Without national judges] there would be a risk that the various forms of civilization and principal legal systems of the world … would not be sufficiently represented for the satisfactory administration of justice. Further, it is highly desirable that the national judges should be able … to put forward and explain the statements and arguments of their states, and to ensure that the sentence … should be drawn up so as to avoid ruffling national susceptibilities… . [Finally,] … though our court is a true court, we must not forget that it is a court between states and that states attach mueh importance to having one of their subjects on the bench when they appear before a Court of Justice.” See ibid., pp. 721, 722.

25 Such criticisms were particularly serious in the following cases: the S. 8. “Lotus” Case (1927); the Customs Eegime Between Germany and Austria (1931); the three phases of the Asylum Case (1950-1951); the Fisheries Case (1951); and the second phase of the South West Africa Case (1966). See also, for a classical criticism that neutral judges, not nationals of the parties in interest, are not entirely free from partiality and political motivation in making their judicial decisions, H. Lauterpacht, op. oit. 204, 225.

26 In the Asylum cases, the judgments of the Court failed to bring the dispute to an end. See Shabtai Bosenne, “Ees Judicata: Some Eecent Decisions of the International Court of Justice,” 28 British Tear Book of International Law 369 (1951). Other judgments which were prevented from being carried out by the defeated states were as follows: the S. S. “Wimbledon” Case (1923), in which Germany, the defeated state, was prevented from paying a certain amount of money to the Government of France because of the decision of an international authority established under Art. 248 of the Treaty of Versailles. See Series E, No. 1, pp. 167-168. The judgment in the case of the Electricity Company of Sofia and Bulgaria (1939) had not been carried out by the time of World War II. See M. O. Hudson, ‘ ‘ The 18th Year of the Permanent Court of International Justice,” 34 A.J.I.L. 10 (1940). The Governments of Ethiopia and Liberia seem unlikely to carry out the judgment of the second South West Africa Case and instead to challenge it, for Mr. Ato Ketema Yifru, the Foreign Minister of Ethiopia, stated at the 21st Session of the U.N. General Assembly in 1966 that “the Ethiopian delegation reiterates its appeal to the Assembly for the revocation of the mandate over South West Africa. A change in the composition of the World Court is called for and the Ethiopian delegation urges amending Article 3 of the Statute of the International Court of Justice to enlarge the membership of the Court-so that it will reflect the increase in the family of nations.” See 3 U.N. Monthly Chronicle 79-80 (Oct., 1966). See also Bosalyn Higgins, “The International Court and South West Africa,” 42 International Affairs 590, 597-599 (Oct., 1966). The Afro-Asian nations at the United Nations also passed a resolution withdrawing from South Africa the right to administer the Territory and conferring this right upon the General Assembly. See New York Times, Sept. 28, 1966, p. 1; 61 A.J.I.L. 649 (1967).

27 of 60 contentious cases and 40 advisory opinions, given by both the old and new Courts at The Hague from 1922 to the end of August, 1967, in one case, namely, Interpretation of the Greco-Turkish Agreement of December 1, 1926, between Greece and Turkey, given on Aug. 28, 1928, did both parties waive their rights, although theywere informed by the Court that they were entitled, under Art. 31 of the Statute, to appoint ad hoc judges. This they did because they were satisfied with the equality of status derived from the fact that neither had a judge of its own nationality on the bench. See P.C.I.J., Series C, Acts and Documents Eelating to Judgments and Advisory Opinions, No. 15-1, p. 10 (Leyden: A. w\ Sijthoff, 1928); and also Series B, No. 16, pp. 7-8 (Leyden: A. W. Sijthoff, 1928). In two other cases which were related to the interpretation of Art. 179 of the Treaty of Neuilly between Bulgaria and Greece, national judges did not participate, because they were in the Chamber of Summary Procedure in 1924-1925. See Series A, Nos. 3-4, pp. 1-11, 1-8. The application of national judges to a Chamber for Summary Procedure began after Feb. 1, 1936, when the amendments to the Statute of the Court which had already been made in 1929 were brought into force. See Art. 31 (4) of the Statute of the old or new Court, and also, especially for the discussions on the matter at the meetings of jurists called by the League of Nations, League of Nations Committee of Jurists on the Statute of the Permanent Court of International Justice, Minutes of the Session Held at Geneva, March llth-19th, 1929, pp. 49-50, 53-55 (Geneva: 1929). The four contentious cases decided by the new Court where disputants did not appoint ad hoe judges, although they had no regular judges of their own nationalities on the bench are as follows: Nottebohm Case, Preliminary Objection (1953), between Liechtenstein and Guatemala, see [1953] I.C.J. Bep. I l l ; Case Concerning Sovereignty Over Certain Frontier Land (1959) between Belgium and The Netherlands, see [1959] ibid. 209; Case Concerning the Temple of Preah Vihear, Preliminary Objection (1961), and Merits (1962), between Cambodia and Thailand, see [1961] ibid. 17 and [1962] ibid. 6. In none of these four cases was it clearly stated that parties actually waived their rights to use national judges except in the second Nottebohm Case (1955), where the party states appointed their ad hoc judges.