IJ №4 (32) 2019
Involvement of a judge of the International Court of Justice in a conflict of interest in context of the problem of impartiality in international adjudication

Abstract

This paper highlights certain legal issues related to the situations when a judge of the International Court of Justice appears to be a party to a con- flict of interest. The author assumes that in international adjudication the definition of a conflict of interest embraces a conflict of potential conditions, when the personal interests of an international judge collide with international legal interests of the world community, while the latter is presumed  to be interested in due fulfillment by international judges of their official duties. In the situation of a conflict of interest, international judges acting as agents of the world community, which casts itself in the role of a collective principal, have a proclivity to abuse their procedural rights to the detri- ment of the principal. Consequently, impartial international adjudication implies impartial establishment of facts and application of law on the basis of the rules of international law de lege lata and over the course of due procedure. Moreover, it is noted that the interests which hamper impartial international adjudication should not be reduced to the personal interests of an international judge, since they can also encompass the particular in- terests of a state party to a dispute, with an international judge acting as «a point man» of such a state. Furthermore, the author attempts to debunk the concept of functional impartiality enunciated by Richard B. Bilder who suggested that impartiality in international adjudication is a mere function  of the composition and the balance of the tribunal as a whole, not the impartiality of every single judge. Further still, the author argues that partisan adjudication is an abuse of power, whilst an international judge is interested in a concrete outcome of the case but retains capacity not to commit such abuse. While examining the mechanisms of conflict-of-interest prevention provided for in Articles 2, 16, 17, and 20 of the ICJ Statute, the au- thor reveals some deficiencies, which create the conditions for potential conflicts. Particularly, the voting statistics of the International Court of Justice judges who are nationals of a state party to a dispute (judges ad hoc as included) clearly points to the tendency of their taking on the role of their states’agents de facto because such judges are usually inclined to vote in favor of their state. One possible solution to this problem is the termination  of the tradition in conformity with which the Court always appoints the judges elected from amongst the nominees of the UN Security Council per- manent members. Another solution could be the reform of institution of ad hoc judges transforming it into the institution of judges ad litem elected by the UN General Assembly for each case from amongst the nominees previously listed by a state.

About the author:

Ruslan Kantur –LL.M., Legal Advisor, Department for New Challenges and Threats, Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia

The views and opinions expressed in the present article are those of the author and do not purport to reflect the opinions and views of the Ministry of Foreign Affairs of the Russian Federation.

Citation:

Kantur R. (2019) Sud’ya Mezhdunarodnogo Suda OON kak storona konflikta interesov v kontekste problemy bespristrastnosti mezhdunarodnogo pravosudiya [Involvement of a judge of the International Court of Justice in a confl t of interest in the context of the problem of impartiality in international adjudication]. Mezhdunarodnoe pravosudie, vol. 9, no. 4, pp. 39–8. (In Russian).

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