Moving the International Court of Justice from Bilateralism to Serving the Community Interest – A Proposal to Refrain from Being a 'National Judge'

In: Austrian review of international and European law: ARIEL, Band 25, Heft 1, S. 65-107

Abstract

Abstract
Empirical analysis shows that judges at the International Court of Justice (ICJ) tend to vote (85 to 90%) for their country of nationality. In order to outweigh this imbalance – already predicted in 1920 when drafting the Statute of the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ – the decision was taken to allow states which do not have a permanent judge of their nationality on the bench to nominate a judge ad hoc. The nationality bias is an important legitimacy issue for the Court. Inspired by Judge Thomas Buergenthal's public appeal and along the lines of Judge Bruno Simma's finding on the shift from 'bilateralism to community interest in international law', this article submits that a national judge at the ICJ should refrain from being a national judge by recusing herself when her home country is party to a case. In doing so she could protect herself from this nationality bias, which is a severe threat to (the appearance of) her impartiality and independence. Arguably, some one hundred years after the decision was taken against mandatory recusal on the basis of nationality when the Statute of the PCIJ was drafted, the international community is now demanding that individual judges of the principal judicial organ of the United Nations serve the community interest independently and impartially.