Challenge and Recusal of Judges of the International Court of Justice : Should the standard applied to the challenge and recusal of judges of the International Court of Justice be changed?

(1)

Challenge and Recusal of Judges of the International Court of

Justice

Should the standard applied to the challenge and recusal of judges of

the International Court of Justice be changed?

Robert Unger 27 July 2018

Public International Law Supervisor: Ingo Venzke

(2)

4.1. Disqualification of Arbitrators under the ICSID Convention. 18 4.1.1. Article 14 of the ICSID Convention. 18 4.1.2. Article 57 and 58 of the ICSID Convention 20 4.2. Challenge of Arbitrators of the Permanent Court of Arbitration 22 4.2.1. Challenge Procedure under UNCITRAL Arbitration Rules 22 4.3. Disqualification in the WTO Dispute Settlement System 24

5. What Would Happen to the Existing Practice at the ICJ if other Standards Were

Used? 27

5.1. Brief Recap of Standards Used for Disqualification of Adjudicators 27 5.2. ICSID, PCA, and WTO Standards Applied to ICJ Challenge Cases 28

6. Conclusion 31

(3)

Abstract

In this thesis I will argue that the standard applied to the challenge and recusal of judges of the International Court of Justice is no longer sufficiently safeguarding the independence and impartiality of judges of the International Court of Justice. I will evaluate this by looking at the development of the standard used in Article 17, paragraph 2, of the ICJ Statute. Firstly, I will look at the differences between the standard of challenge and recusal of judges at the national (Dutch legal order) and the international level (ICJ). I will look at whether, and why, there are any significant differences. I will then compare the standard used by the ICJ to the standard applied to challenge and recusal cases at the International Centre for Settlement of Investment Disputes, the Permanent Court of Arbitration, and the World Trade Organization Dispute Settlement System. After comparing the standards used in these other fields of adjudication to the standard of the ICJ, I will conclude that the standard used by the ICJ needs to be changed. This conclusion is based on factors discussed throughout the thesis. Finally, I will make a recommendation regarding a possible change of the current standard in place and applied by the ICJ.

(4)

1. Introduction

The judicial independence and impartiality of the International Court of Justice (ICJ) is at risk as a result of the current line followed in case law showing a strict interpretation of the standard applied to challenge and recusal cases by the ICJ. I will thoroughly discuss this standard and its application in this thesis.

The procedures for the election of judges of the ICJ is codified in the ICJ Statute. The International Court of Justice is composed of 15 judges, elected by the United Nations

General Assembly and Security Council for nine-year terms.1_{The principle of judges being}

impartial and independent is a crucial element in the judicial standards applied by a court. In this context, before taking up his duties, every member of the Court has to make the

following solemn declaration: “I solemnly declare that I will perform my duties and exercise my powers as judge honorably, faithfully, impartially, and conscientiously”.2_{Judges of}

international courts can however, in certain cases, be challenged or recuse themselves. Recusal is inter alia done by the judge himself/herself when the circumstances require it. A judge can be challenged under specific circumstances. The rules for recusals and challenges are usually codified in the rules and statutes of the international courts and tribunals. In this thesis I will look at the rules and practice of the challenge and recusal of judges of the International Court of Justice. Under what circumstances can judges be challenged or when do judges have to recuse themselves? What are the legal grounds for, and thoughts behind a challenge or recusal? The question which arises in this respect is whether the grounds for disqualifying a judge of the ICJ are sufficiently covered by the rules and statutes of the ICJ in order to secure optimal judicial independence and impartiality.

The main questions I will address in this thesis are: Should the standard used to justify the challenge or recusal of judges at the International Court of Justice be amended? If so, in which direction should it change? For the first part of this research question I will describe and explain the standard for the recusal/challenging of judges that is in place now. I will compare the international legal order (in particular regarding the ICJ) with the Dutch

domestic legal order with respect to the rules in place for the recusal and challenge of judges (Chapter 2). Furthermore, I will describe the most important amendments from the

1_{Article 4, United Nations, Statute of the International Court of Justice, 18 April 1946 [hereinafter: ICJ Statute].} 2_{Article 20 ICJ Statute and Article 4 Rules of the Court (1978), adopted on 14 April 1978 and entered into force}

(5)

developing history of the standard that is presently used for the challenge and recusal of judges of the ICJ (Chapter 3). What are the underlying rationales behind this practice? In Chapter 4 I will examine the standard that is used for the recusal/challenge of judges in different fields of adjudication. The fields I will examine are the International Centre for Settlement of Investment Disputes (ICSID), the Permanent Court of Arbitration (PCA), and the WTO Dispute Settlement System. The second part of the research question is an

evaluative question. In which direction should a possible change in the field of the challenge and recusal of judges of the International Court of Justice take place? In the chapter dedicated to this evaluation (Chapter 5) I will review and evaluate whether the application of the

standards of the other fields of adjudication would have resulted in a different outcome of the ICJ challenge cases. This evaluation will be based on arguments of consequence. By looking at the consequences that a change of standard will have, based on standards and outcomes of recusal/challenge cases in other fields of adjudication, I will conclude with a recommendation for a possible change of the standard applied to the challenge and recusal of judges of the International Court of Justice (Chapter 6).

(6)

2. What are the Legal Grounds for the Challenge and Recusal of

Judges?

There are several grounds for the recusal/challenge of judges in different legal orders and legal disciplines. To get a better and more detailed understanding of the practice of the recusal/challenge of judges I will examine the possibilities in the international legal order (specifically the practice before the International Court of Justice), as well as the Dutch domestic legal order. This chapter will help us understand what the differences are between the international legal order and the Dutch domestic legal order. What are the differences in the legal grounds between these two legal orders? Are the procedures different or are they quite similar? What could be the rationale behind these differences?

2.1. Challenge and the Recusal of Judges in the International Legal Order

The right for parties to challenge a judge was an idea that the Permanent Court of International Justice (PCIJ, the predecessor of the ICJ) had initially rejected.3_{The PCIJ}

Statute was drafted by an Advisory Committee of Jurists in 1920. This draft was largely influenced by the Draft Convention relative to the Creation of a Court of Arbitral Justice of 1907.4_{At the Second Peace Conference in 1907, which was attended by 44 States, they did}

not reach consensus on a permanent international court. This was mainly because of the issue concerning the appointment of judges; the great powers all wanted to have a permanent judge in the Court and other, less influential, States wanted to be treated equally.5

The right to challenge a judge was eventually discreetly recognized by the PCIJ, as well as by the Advisory Committee of Jurists in 1920, before it was eventually codified into the Rules of the Court in 1978.6_{The procedure for the challenging of a judge of the ICJ is}

slightly complicated and the basis for such a challenge is quite narrow. Article 34 of the Rules of the Court prescribes that any party may communicate confidentially in writing to the President of the Court any facts which it considers to be of possible relevance to the

application of Article 17, paragraph 2, and Article 24 of the ICJ Statute. Article 17, paragraph 2, ICJ Statute states the following:

3_{Third Annual Report, PCIJ, Series E, No. 3, p. 186.}

4_{J. Brown Scott, ‘The Reports to the Hague Conferences of 1899 and 1907’, The Clarendon Press 1917, p.}

226-231.

5_{A. Fachiri, ‘The Permanent Court of Justice’ (2}nd_{edition), Oxford University Press 1932.} 6_{Sixth Annual Report, PCIJ, Series E, No. 6, p. 272-3.}

(7)

“No member may participate in the decision of any case in which he has previously

taken part as agent, counsel, or advocate for one of the parties, or as member of a national or international court, or of a commission of enquiry, or in any other capacity.”

Article 24 of the ICJ Statute reads as follows:

“1. If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President.

2. If the President considers that for some special reason one of the members of the Court should not sit in a particular case, he shall give him notice accordingly.

3 If in any such a case the member of the Court and the President disagree, the matter shall be settled by the decision of the Court.”

A challenge of a judge of the ICJ has to be based on facts that are relevant for the application of Article 17, paragraph 2, and Article 24 of the ICJ Statute. This is quite specific and

narrow, especially compared to the Dutch system, as I will show in the next part of this chapter. With respect to the application of article 17, paragraph 2, the Court (excluding the challenged judge) decides on the challenge request. If the challenge request is based on a disagreement of the application of Article 24, the decision also lies with the Court.7

The requests for the removal of a judge of the ICJ are rare. In the history of the ICJ it has only been requested three times and the request was rejected each time.8_The

above-mentioned narrow approach was followed by the Court in at least two of these cases because the Court did not find prior actions and/or statements done or made by judges in prior

positions enough to accept the challenge of the judges brought before the Court.9_{In the third}

case in which a judge of the ICJ was challenged (concerning Judge Padilla Nervo), the application was heard in a closed hearing and there are no official records of the exact details.10_{In this case there was also a lot of discussion surrounding the “recusal” of Judge}

7_{Article 34, paragraph 1, Rules of the Court.}

8_{C. Giorgetti, ‘Between Legitimacy and Control: Challenges and Recusals of Judges and Arbitrators in}

International Courts and Tribunals’, 49 Washington International Law Review 205 (2016), p. 213.

9_{Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)}

Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ; Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Advisory Opinion) 2004 ICJ.

10_{South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgement of 18 July 1966 and}

(8)

Zafrulla Khan but since this was officially not a challenge I will not discuss this.11_The

application of the challenge of Judge Nervo is however widely believed to have been about the position taken by a Member of the Court prior to his appointment while representing his government at a United Nations General Assembly meeting that discussed the matter of South West Africa.12_{The request for removal was denied in all three cases and the judges}

continued to sit on the bench in those particular cases.

Judges of the International Court of Justice are obliged to recuse themselves when the criteria in Article 17 of the ICJ Statute are met. A member of the Court cannot act as agent, council or advocate in any case.13_{Article 17, paragraph 2, as mentioned above provides the}

standard that is used by the ICJ for the possible recusal of judges. Based on this article judges need to recuse themselves when they have had specific prior involvement with the case at hand. Any doubt on this point shall be settled by decision of the Court.14_{This standard has}

been criticized by Judge Buergenthal in his dissenting opinion in the case known as Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory. I will

discuss this criticism in-depth in the next chapter. As a safeguard for this system, the

President of the Court and the Court as a whole also retain the power to remove a judge from a case. Article 24 of the ICJ Statute is another article based on which a member of the Court can decide, for some special reason, not to take part in a decision of a particular case

(paragraph 1), or the President of the Court can, for some special reason, decide that a member of the Court should not sit in a particular case (paragraph 2).15_{With respect to the}

application of this article the President will in principle decide, unless the President and the subject member of the court disagree. In the latter case the Court decides.16_{The system}

before the ICJ is a system of self-regulation. Remarkably, there is no higher institution that evaluates and/or checks the procedures of the ICJ. Judges are entrusted to recuse themselves when a case requires them to do so. Due to an increased caseload before the ICJ and the fact that judges remain active members of the international legal community during their nine-year (renewable) terms, I believe this system needs to be continually evaluated. The fact that the ICJ judges remain active as international arbitrators and are regularly appointed as

11_{V. Kattan, Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla}

Khan in the South West Africa Cases, Asian Journal of International Law, September 2014, p. 35.

12_{UNFCCC, Compliance Committee, ‘Summary of relevant case law on conflict of interest’, CC/7/2010/2, 16}

June 2010, under II, B.3.

13_{Article 17, paragraph 1, ICJ Statute.} 14_{Article 17, paragraph 3, ICJ Statute.} 15_{Article 24 ICJ Statute.}

(9)

arbitrators in ad hoc investment arbitrations and other international arbitrations could contribute to conflicts between cases and conflicts of interests.17

2.2. Dutch Domestic Practice for the Challenge and Recusal of Judges

In the Dutch legal order the challenge of a judge is slightly easier than in the international legal order. In the Netherlands judges can be challenged (known in Dutch as ‘wraking’) when parties believe that certain facts or circumstances would damage the judicial independence. Articles in the Criminal Procedure Code18_{set out the procedure for challenging a judge in a}

criminal case. Article 512 of the Criminal Procedure Code states that both the accused and/or the prosecution can challenge a judge if there are facts or circumstances that lead to the loss of impartiality of the judge. There have however been cases in which other actors with an interest in the dispute have been permitted to challenge a judge.19_{In civil and administrative}

procedures in the Dutch legal order, the challenge of a judge also needs to be based on facts or circumstances that could lead to the loss of impartiality of the judge.20

Article 513 of the Criminal Procedure Code explains how the request for the

challenge is done in the Dutch domestic order. The request has to be done as soon as the facts and/or circumstances become known to the requesting party.21_{The request must be motivated}

and in writing unless it is done verbally during the hearing.22_{Again, the procedures in the}

civil and administrative jurisdictions are the same.23_{Article 514 states that a judge can decide}

to accept the challenge concerning him or her brought forward by one of the parties.24_The

last article (Article 515) concerning the procedure of challenging judges in the Netherlands states the actual procedure of the challenge. According to Article 515 a new bench with multiple judges, for obvious reasons not including the judge that is being challenged, will preside over the request. The decision taken by this bench is binding and there is no possibility to appeal this decision. The procedures for the civil and administrative

17_{C. Giorgetti, ‘Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals’,}

Koninklijke Brill NV Leiden 2015, p. 9.

18_{Criminal Procedure Code (in Dutch: ‘Wetboek van Strafvordering’).}

19_{For instance, in cases Hof Amsterdam 27 januari 1999, NJ 1999/254 and Hof Arnhem 16 april 2010, LJN}

BM6342 and Hof ‘s-Hertogenbosch 19 september 2002, NJ 2003/118; Hof Den Haag 14 januari 2008, LJN BC4438 and Rb. Zutphen 15 december 2010, LJN BO7647 and Rb. Rotterdam 1 oktober 2009, LJN BJ9070 and Rb. Den Haag 29 november 2006, LJN AZ3704.

20_{Article 36 Code of Civil Procedure (in Dutch: ‘Wetboek van Burgerlijke Rechtsvordering’); Article 8:15}

General Administrative Law Act (in Dutch: ‘Algemene Wet Bestuursrecht’).

21_{Article 513, paragraph 1, Criminal Procedure Code (Wetboek van Strafvordering).} 22_{Article 513, paragraph 2, Criminal Procedure Code (Wetboek van Strafvordering).} 23_{Article 37 Code of Civil Procedure and Article 8:16 General Administrative Law Act.}

(10)

jurisdictions are similar and are found in Article 39 of the Code of Civil Procedure and

Article 8:18 of the General Administrative Law Act. The procedure for challenging a judge in the Dutch domestic legal system seems to be straight forward and clear. The grounds for a challenge seem very broad since it can be based on all facts and circumstances. The percentage of accepted challenges of judges in the Netherlands is between 4% and 5%.25

In the Dutch legal order judges also have the opportunity to recuse themselves. If there are facts or circumstances (similar as to what is mentioned in Article 512 of the Criminal Procedure Code) that would lead to the loss of impartiality, judges can recuse themselves (known in Dutch as ‘verschonen’).26_{Article 518 contains the procedure of}

recusal, which is similar to the procedure used for the challenging of a judge. A new bench with multiple judges preside over the request of recusal. The decision that is taken is binding and there is no way of appealing this decision. The number of recusals in the Netherlands is substantively lower than the amount of challenges of judges.27_{There are also hardly any}

challenges based on grounds on which the judge would have had to recuse himself/herself. The request for recusal by the judge is almost always accepted.28

2.3. Similarities and Differences Between International and Dutch Legal Order

Both the Dutch legal system and the ICJ rules provide for clear procedures with respect to challenging and the recusal of judges. The ICJ rules are however stricter than the Dutch rules. Under the Dutch rules for example the parties can file a challenge request in writing or even verbally during the hearing. The ICJ rules require a confidential written request to the President of the Court. Under the ICJ rules only specific parties to the case can file a challenge request. Under the Dutch rules there have been cases in which other actors were allowed to file a challenge request.29

In the Dutch system, the Court always decides with respect to a challenge or recusal request. Under the ICJ rules the Court also decides regarding a challenge request. In case of recusal of a judge of the ICJ it depends on the legal basis of the recusal. In case of doubt of the application of Article 17, paragraph 2, ICJ Statute, the Court decides on the

25_{Annual Report Rechtspraak 2016, paragraph 15.1.}

26_{Article 517 Criminal Procedure Code (Wetboek van Strafvordering).}

27_{Ministry of justice and safety, Wraking en verschoning van rechters, discussiestuk, 6 June 2014, available on:}

www.rijksoverheid.nl (last consulted on 4 April 2018).

28_{I. Giesen, F. Kristen, L. Enneking, E. de Kezel, L. van Lent en P. Willemsen, ‘De wrakingsprocedure. Een}

rechtsvergelijkend onderzoek naar de mogelijkheden tot herziening van de Nederlandse wrakingsprocedure’, Den Haag: Sdu 2012.

(11)

recusal. If the recusal is based on Article 24 ICJ Statute, the President of the Court decides unless the President and the member of the Court disagree, then the decision lies with the Court.

The crucial difference between the Dutch rules and the ICJ rules regarding the challenge and recusal requests seems to be in the grounds for such requests. Based on the Dutch rules a challenge or recusal request can be filed if there are facts and circumstances that, in the opinion of the party filing the request, can lead to the loss of impartiality of the judge. Under the ICJ rules however, such a request can only be filed if there is a possible relevance to the application of Article 17 or 24 of the ICJ Statute. Even though this could be seen as a relatively broad scope, the strict interpretation of the ICJ, which I will elaborate on in the next chapters, makes this a rather restricted ground for (successful) challenge requests. As a result, the basis for filing a challenge or recusal request is narrower under the ICJ rules than under the Dutch rules. This seems to be substantiated by the fact that a request for removal of a judge of the ICJ has only happened three times (and was rejected each time) whereas challenge requests under Dutch law occur more frequently.

It is presumed that judges of the ICJ are independent and impartial.30_{Without this}

independence and impartiality an international court would lose all its respect, which would mean it loses all its power. The various statutes and rules of the international tribunals and courts set out guidelines for the independence and impartiality of judges. These rules are subsequently applied quite restrictively by the ICJ. On a national level it is more difficult to pinpoint specific rules and/or statutes that dictate what an independent and impartial judge should act/behave like since the Dutch Criminal Procedure only refers to facts and

circumstances without further specification. This is the most important reason for the

difference of, and frequency in which, procedures for challenging and/or recusal of judges are applied nationally and internationally (before the ICJ).

Having said this, the question remains as to why the ICJ adheres to a restrictive approach when applying the specific rules laid down in the ICJ Statute and the Rules of the Court. This approach may stem from a conservative approach to judicial independence and impartiality (which could perhaps find its foundation in the fact that the Court was seen as the permanent substitute of arbitration tribunals).31_{Another reason for this narrow approach}

30_{R. Mackenzie and P. Sands, ‘International Court and Tribunals and the Independence of the International}

Judge’, Harvard International Law Journal, Vol. 44 (1) 2003, p. 275.

31_{Y. Shany and S. Horovitz, ‘Judicial Independence in The Hague and Freetown: A Tale of Two Cities’, Leiden}

(12)

might be that the ICJ does not have jurisdiction over individuals, but over States. The right to due process is perhaps more of a sensitive issue when it comes to individuals than it is when it comes to States.32

32_{Chiara Giorgetti, ‘Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals’,}

(13)

3. Historic Development of the Standard for the Challenge and

Recusal of Judges of the ICJ

The most important standard for the challenge and recusal of judges of the ICJ has been codified in Article 17, paragraph 2, ICJ Statute. The standard can be described as the

‘specific prior involvement’ standard. Judges are not to participate in the decision in cases in which they have previously taken part as agent, council, or advocate for one of the parties, or as member of a national or international court, or of a commission of enquiry, or in any other capacity. In this chapter I will trace the historic development of this standard (as codified in Article 17, paragraphs 1 and 2, ICJ Statute) as it has been shaped to be what it is today. Through the initial debates and commentaries surrounding the articles and rules for the challenge and recusal of judges of the ICJ I will find out how this standard was developed and what its rationale and objective is.

3.1. Early Standard

The original text in the Statute of the PCIJ of Article 17, paragraph 2, ICJ Statute was slightly different from the text we use today in the ICJ Statute. The most important change to this text occurred in 1945 with the drafting of the ICJ Statute. The English version was adjusted to correspond more closely with the original French PCIJ text. The word ‘active’ was deleted from paragraph 2 of Article 17, which had its place before the word ‘part’. Before this change in 1945 the text read ‘had previously taken an active part’ and after the change the text reads ‘had previously taken part’.33_{So, the standard for the challenge and recusal of judges used to}

be formulated in a narrower way. Judges were, before the amendment, to recuse themselves (or could be challenged) when they had previously taken an active part in a case. This wording could suggest that a passive part in a previous case was not enough for a judge to have to recuse himself or to be challenged. The adjustment in 1945 shows some willingness of the drafters towards a more open standard. By deleting the word ‘active’ they emphasize that the rationale behind paragraph 2 is to secure total independence and impartiality of judges that sit on the bench at a case before the ICJ. The question I will thrive to answer in the next chapters is whether there are reasons why the standard set out in Article 17,

33_{A. Zimmermann, K. Oellers-Frahm, C. Tomuschat, C. J. Tams, M. Kashgar, D. Diehl, ‘The Statute of the}

International Court of Justice (2nd_{Edition): A Commentary’, Oxford Commentaries on International Law 2012,}

(14)

paragraph 2, ICJ Statute should be broader than it currently is.

During the existence of the Permanent Court of International Justice (PCIJ) Articles 17 and 24 of the Statute were first seen as different grounds for the disqualification of a judge.34_{Article 24 was only to be used when a judge felt that (s)he should not sit in a case for}

personal reasons that could not fall under the facts of Article 17.35_{Part of the difficulty in the}

distinction between these two articles is the fact that it can be hard to determine what exactly falls within the scope of previous involvement ‘in a case’. In the so-called ‘Wall case’36_the

ICJ gave a narrow definition to the term ‘the case’. For this definition it only considered the construction of the wall but not the surrounding circumstances which resulted in the

construction of the wall. The related circumstances can fall within the scope of both Article 17 and Article 24. It is because of this difficulty that the Court, from the 1930s onwards, decided to use both articles in conjunction.37_{The Court will nowadays often mention both}

articles as grounds for recusal of a judge.

3.2. Article 17, paragraph 1, ICJ Statute and ad hoc Judges

Article 17, paragraph 1, ICJ Statute prohibits members of the Court to act as an agent, counsel, or advocate in any case. Since 1936, Article 17, paragraph 1, ICJ Statute does not apply to ad hoc judges. However, the Court does not find it desirable that a judge acts ad hoc as part of the Court in one case and as counsel in another.38_{Therefore, in February 2002, the}

Court adopted Practice Direction No. VII in which they laid down the way in which “the

sound administration of justice” should be safeguarded in the case of ad hoc judges. The

Practice Direction stresses that parties should refrain from appointing judges ad hoc that are acting as agent, counsel, or advocate in another case before the Court or have done so in the last three years. Vice versa, parties are not to designate a judge as agent, counsel, or advocate in a case if that judge sits as judge ad hoc in another case before the Court. There has been some critique about the period of three years that needs to have passed before a judge can fulfill another role before the Court.39_{This time period is supposedly too long and would}

highly complicate the appointment and selection of adequate judges in a case. The time

34_{Seventh Annual Report, PCIJ, Series E, No. 7, p. 288} 35_Ibid.

36_{See supra note 42.}

p. 381.

38_Ibid.

39_{For example, as expressed in: A. Watts, ‘New Practice Directions of the International Court of Justice’, The}

(15)

period of three years in which judges cannot have acted as judge ad hoc in one case and as agent, counsel, or advocate in another, could impose the situation in which the best suited judge for a case in not allowed to sit in that case.40_{Apart from the situation surrounding ad}

hoc judges, paragraph 1 of Article 17 ICJ Statute has never caused any difficulties.41

3.3. Critique on the Standard

Judge Buergenthal expressed his critiques in his dissenting opinion in the Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory case (“the Wall case”).42_{In this case Judge Elaraby was challenged by Israel because of his professional}

activities as diplomatic representative of his country (Egypt) and his personal statements on matters which were of importance for the case before the Court. The Court decided that there were no grounds to disqualify Judge Elaraby based on the professional activities as

diplomatic representative because these activities were performed many years before the question submitted to the Court.43_{As to the personal statements made by Judge Elaraby, the}

Court decided that these statements did not express an opinion on the question put in the case at hand.44_{Judge Buergenthal does not agree with the latter argument as given by the Court.}

He says that the standard used for the recusal of judges should be ‘appearance of bias’ and not ‘specific prior involvement’. Art. 17 (2) ICJ Statute should be read in a broader sense, in his opinion. He says; “A court of law must be free and, in my opinion, is required to consider whether one of its judges has expressed views or taken positions that create the impression that he will not be able to consider the issues raised in a case or advisory opinion in a fair and impartial manner, that is, that he may be deemed to have prejudged one or more of the issues bearing on the subject-matter of the dispute before the court.”45_{Judge Buergenthal believes}

that Judge Elaraby should have been disqualified or recused himself in this case. Judge Buergenthal believes that opening up the standard of Article 17, paragraph 2, ICJ Statute, by changing the threshold to no appearance of bias, would be in line with the rationale of the

p. 382.

41_{Id., p. 385.}

42_{Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)}

2004 ICJ.

43_{Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)}

2004 ICJ (dissenting opinion Judge Buergenthal), paragraph 3.

44_{Id., paragraph 4.} 45_{Id., paragraph 11.}

(16)

article and judicial ethics.46

As mentioned above, Article 17, paragraph 2, ICJ Statute does not disqualify judges who have publicly taken a specific point of view on a certain issue which is brought up in a case. It is only relevant whether a judge has previously taken part in a case as agent, counsel, or advocate for one of the parties. In instances where a member of the Court had previously taken part in a case, the judge has always recused him/herself.47_{This restrictive interpretation}

is the basis of the critique on Article 17 brought forward by Judge Buergenthal in his dissenting opinion in the Wall case. In line with the critique by Judge Buergenthal, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) did disqualify a judge since he has expressed certain views in the past.48_{Although the judge made his statements before}

his appointment as judge and the statements did not specifically address the case at hand, he was nevertheless disqualified.

Considering this critique and the above-mentioned SCSL case it is also interesting to look at the so-called Burgh House Principles on the Independence of the International Judiciary (hereinafter Burgh House Principles).49_{By drafting these principles, an}

International Law Association (ILA) study group has tried to formulate certain rules to improve judicial independence and impartiality. Although these principles are not binding, they contain useful general guidelines that contribute to the independence and impartiality of the international judiciary. It is proposed that these principles shall apply primarily to

standing international courts and tribunals. In the context of the discussions regarding the application of Article 17, paragraph 2, ICJ Statute in particular Principle 9.2 of the Burgh House Principles is relevant. Principle 9.2 reads: “9.2 Judges shall not serve in a case with

the subject matter of which they have had any other form of association that may affect or may reasonably appear to affect their independence or impartiality.” This principle would

expand the grounds for disqualification of judges of the ICJ and could improve the independence and impartiality at the ICJ.

46_{Id., paragraph 14.}

47_{E.g. ICJ Yearbook (1954-1955), p. 88 (Nottebohm); ICJ Yearbook (1962-1963), p. 94 (Temple of Preah}

Vihear); ICJ Yearbook (1968-1969), p. 110 (Barcelona Traction, Light and Power Company Limited); ICJ Yearbook (1976-1977), p. 114 (Aegean Sea Continental Shelf); ICJ Yearbook (1995-1996), p. 224 (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie; Gabčíkovo-Nagymaros case); ICJ Yearbook (2006–2007), p. 276 (Certain Questions of Mutual Assistance in Criminal Matters); ICJ Yearbook (2007–2008), p. 328 (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge).

48_{Prosecutor v. Sesay, Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the}

Appeals Chamber, Case No. SCSL-2004-15-AR15, A.Ch., 13 March 2004.

49_{The Burgh House Principles on the Independence of the International Judiciary, 25 November 2004, reprinted}

(17)

With the above-mentioned in mind I will, in the following chapters, explore the different standards used for the challenge and recusal of judges in other fields of adjudication and the consequences of possibly using these standards in the field of the International Court of Justice.

(18)

4. What is the standard used in different fields of adjudication?

In this chapter I will explore several fields of adjudication and look at the specific legal documents that have codified the procedures and the rules for the challenge or recusal of judges and/or arbitrators. First, I will look at the rules surrounding the disqualification of arbitrators and/or conciliators under the International Centre for Settlement of Investment Disputes Convention (ICSID Convention). Under what circumstances and based on what grounds can an arbitrator and/or conciliator be disqualified? The second institution I will look at is the Permanent Court of Arbitration (PCA). What are the rules for challenging arbitrators of the PCA? Thirdly, I will look at the rules and procedures for recusal of judges in the World Trade Organization (WTO) Dispute Settlement System. I have chosen to evaluate these fields of adjudication because I believe they reflect both the first and the second generation of (modern) international adjudication.50_{The PCA can be seen as the first permanent institution}

for the settlement of international disputes through adjudication.51_{The second generation of}

(modern) international adjudication includes the ICSID and the WTO.

4.1. Disqualification of Arbitrators under the ICSID Convention

The ICSID Convention is an international treaty that came into force in 1966. The ICSID Convention gave the International Centre for Settlement of Investment Disputes the mandate to settle international investment disputes between States and foreign investors.52_These

disputes are mostly settled through an arbitration tribunal. Article 37, paragraph 2 b, of the ICSID Convention states that each party appoints one co-arbitrator and they agree on the third arbitrator who will be the President of the Tribunal. If the parties cannot agree on the third arbitrator, the Secretary-General (or the Chairman of the Administrative Council) of ICSID appoints the President of the Tribunal.53_{The following paragraphs will focus on the}

important articles for challenge and recusal of arbitrators under the ICSID Convention.

4.1.1. Article 14 of the ICSID Convention

ICSID arbitrators need to meet certain qualifications in order to be an arbitrator on the ICSID

50_{G. Born, ‘A New Generation of International Adjudication’, Duke Law Journal 61 2012, p. 778-781.} 51_{C. Brown, ‘The Evolution and Application of Rules Concerning Independence of the “International}

Judiciary”’, The Law and Practice of International Courts and Tribunals 2 2003, p. 66.

52_{Chiara Giorgetti, ‘Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals’,}

(19)

Panel of Arbitrators. Article 14, paragraph 1, of the ICSID Convention lists the basic

qualifications of arbitrators on the ICSID Panel of Arbitrators. Article 14, paragraph 1, states the following:

“Persons designated to serve on the Panels shall be persons of high moral character

and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.”

This article gives the standard that the arbitrators need to live up to. Arbitrators must: i.) be of high moral character, ii.) be of recognized competence in the fields of law, commerce,

industry or finance, and iii.) be relied upon to exercise independent judgment. The

requirement of high moral character led to several questions during the drafting of the ICSID Convention. When is a person of high moral character? Mr. Aron Broches, the main drafter of the Convention and founding Secretary-General of ICSID, explained that the words “high moral character” were taken from Article 2 of the ICJ Statute.54_{In Article 2 of the ICJ Statute}

the words ‘persons of high moral character’ are deemed to be only subjectively

determinable.55_{The second requirement did not lead to a lot of discussion and does not}

exclude non-lawyers from being members of the Panel of Arbitrators or of an arbitral tribunal.56_{In early drafts of the Convention, the third requirement found in Article 14 of the}

ICSID Convention did not exist. The Convention did not address the independence or

impartiality of arbitrators (or conciliators).57_{The fact that this was added in a later version of}

the Convention shows that the drafters were concerned about safeguarding this independence and impartiality. The independence and impartiality of arbitrators is also protected by

Arbitration Rule 6, paragraph 258_{which requires each arbitrator to give a statement regarding}

54_{Convention of the Settlement of Investment Disputes between States and Nationals of other States,}

Documents Concerning the Origin and the Formulation of the Convention, vol. II, part 2, documents 44-146, p. 728.

p. 244.

56_{C. H. Schreuer, L. Malintoppi, A. Reinisch and A. Sinclair, ‘The ICSID Convention: A Commentary (Second}

Edition)’, Cambridge University Press 2009, p. 49.

57_Ibid.

58_{The Rules of Procedure for Arbitration Proceedings (hereinafter the Arbitration Rules) of ICSID, Rule 6 (2)}

which reads: “Before or at the first session of the Tribunal, each arbitrator shall sign a declaration in the

following form: To the best of my knowledge there is no reason why I should not serve on the Arbitral Tribunal constituted by the International Centre for Settlement of Investment Disputes with respect to a dispute between ___ and ___ .”

(20)

any professional, business or other relationship with the parties.59_{Rule 6, paragraph 2, was}

amended in 2006 to include a required statement disclosing any other circumstances that might cause questions about the arbitrator’s ability to judge independently. The explanatory note states that this amendment was made to “expand the scope of disclosures of arbitrators to include any circumstances likely to give rise to justifiable doubts as to the arbitrator’s reliability for independent judgment”.60

Article 14, paragraph 1, of the ICSID Convention safeguards the qualifications of arbitrators, including the independence and impartiality of arbitrators. Besides this safeguard, Arbitration Rule 6, paragraph 2, is a provision that enhances the reliability for independent judgment.

4.1.2. Article 57 and 58 of the ICSID Convention

The most common ground for the proposals of disqualification of arbitrators at ICSID is Article 57 ICSID Convention. The proposal for disqualification must always come from a party to the dispute. There is no option for the commission/tribunal or the Centre itself to initiate a procedure for disqualification. Article 57 of the ICSID Convention reads as follows:

“A party may propose to a Commission or Tribunal the disqualification of any of its

members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV.”

The first ground for disqualification is when an arbitrator does not fulfill the qualifications in Article 14, paragraph 1, ICSID Convention. The second ground based on which arbitrators can be challenged is if the arbitrators were ineligible for appointment under Articles 37 to 40 of the ICSID Convention (Section 2, Chapter IV). Article 58 of the ICSID Convention regulates who decides on any proposal for disqualification. The main procedure, which has always been accepted, is that the other members of the commission or tribunal should decide on the proposal for disqualification.61_{In cases where there is only one conciliator or}

60_{Id., p. 512.} 61_{Id., p. 1210.}

(21)

arbitrator, cases where the other members are divided, and cases where proposal for

disqualification concerns the majority of the members, the Chairman of the Administrative Council of ICSID makes the decision on any proposal for disqualification.

Early discussions surrounding Article 57 were about whether the grounds for disqualification should be specified in the Convention.62_{The Working Paper included}

reasons for disqualification, specifically “that he (i.e. the arbitrator) has an interest in the subject matter of the dispute or that he had, prior to his appointment, dealt with the dispute in any capacity whatever”.63_{In the debate that followed the drafters pondered whether they}

would specify the grounds for disqualification (at the time options included ‘general unfitness’, ‘personal prejudice’, ‘misconduct’, ‘interest in the subject matter’ and ‘lack of independence’).64_{The conclusion was that the grounds for disqualification would be defined}

in terms of Article 14 of the ICSID Convention. This standard was further specified in several cases. In the Vivendi v. Argentina case65_{the decision on a disqualification proposal}

stated: “The mere existence of some professional relationship with a party is not an automatic basis for disqualification of an arbitrator or Committee member. All circumstances need to be considered in order to determine whether the relationship is significant enough to justify entertaining reasonable doubts as to the capacity of the arbitrator or member to render a decision freely and independently”.66_{The question should always be whether there is a real}

risk of lack of impartiality and independence based on all the facts and circumstances.67_In

the Saipem v. Bangladesh case68_{the decision emphasized, among other things, that an}

arbitrator’s doctrinal opinions “expressed in the abstract without reference to any particular case do not affect the arbitrator’s impartiality and independence”.69

Another debate surrounding Article 57 of the ICSID Convention focused on the wording of the article, mainly the interpretation of the word ‘manifest’. Until this day it is not completely clear whether the word ‘manifest’ indicates the seriousness of the lack or the level

63_{Working Paper in the form of a Draft Convention prepared by the General Counsel and transmitted to the}

Executive Directors, R 62-1 (SD), June 5, 1962, p. 25.

65_{Vivendi v. Argentina, Decision on the Challenge to the President of the Committee, 3 October 2001.} 66_{Id., para. 28.}

68_{Saipem v. Bangladesh, Decision on Proposal for Disqualification, 11 2005.}

69_{Saipem v. Bangladesh, Decision on Proposal for Disqualification, 11 2005 and Saipem v. Bangladesh,}

(22)

of evidence found for the lack.70_{‘A manifest lack of the qualities in Article 14’ suggests that}

there is a high threshold. In the Suez decision from 2008 the Tribunal confirms this high threshold and held that in order to successfully disqualify an arbitrator under Article 57: “the

Respondent … must prove such facts that would lead an informed reasonable person to conclude that [the challenged arbitrator] clearly or obviously lacks the quality of being able to exercise independent judgment and impartiality.”71

A violation based on the second ground in Article 57 of the ICSID Convention, Section 2 of Chapter IV (referring to certain nationality requirements), is not common. Parties are assisted by the ISCID Secretariat when it comes to appointing arbitrators. This Secretariat makes sure the composition of the Court is correct and therefore the nationality requirements in Section 2 of Chapter IV of the ICSID Convention are not often violated. Possible, but unlikely, violations of this requirement could occur if the nationality of the investor is not clear or if there is a dual nationality.72

4.2. Challenge of Arbitrators of the Permanent Court of Arbitration

Based on party agreement, the Secretary-General of the PCA has the authority to determine challenges to arbitrators brought forward by one of the parties in a specific case. The Secretary-General usually determines challenges to arbitrators under the UNCITRAL

Arbitration Rules (hereinafter: UNCITRAL Rules) 1976 or 2010.73_{As most of the challenges}

to arbitrators of the PCA are based on and determined under the UNCITRAL Rules I will focus on the procedure under the UNCITRAL Rules for the remainder of this paragraph (4.2).

4.2.1. Challenge Procedure under UNCITRAL Arbitration Rules

Article 12, paragraph 1, of the UNCITRAL Rules (2010) provides that any arbitrator may be challenged if there are circumstances that give rise to justifiable doubts as to the impartiality and independence of the arbitrator. When are doubts as to impartiality and independence of an arbitrator justified? The standard for impartiality and independence is an objective

71_{Suez et al. v. Argentine Republic, Decision on a Second Proposal for the Disqualification of a Member of the}

Arbitral Tribunal (May 12, 2008), para. 29.

(23)

standard. The doubts need to be ‘justifiable’, which means that a subjective doubt of one of the parties will not be sufficient to successfully challenge an arbitrator.74_{The drafters of the}

1976 UNCITRAL Arbitration Rules were concerned that the criteria in which was then Article 10, paragraph 1 (now Article 12, paragraph 1), were not clear enough. They

contemplated making a list of examples of when a doubt as to impartiality or independence was justified. The drafters soon realized that it would be impossible to make an exhaustive list. It was not possible for them to create a document that listed all the possibilities in which an arbitrator could be challenged.75_{However, based on case law there are now five broad}

grounds based on which parties have challenged arbitrators of the PCA; 1. An arbitrator’s relationship to a party or counsel for a party, 2. Improper conduct during the proceedings, 3. Public statements made by an arbitrator, 4. Issue conflicts, 5. Failure to act.76_{The first ground}

can entail, among other things, a financial interest, a long-standing relationship, familial relations or other professional contacts between the arbitrator and one of the parties.

Improper conduct during the proceedings is also a broad ground but it usually does not lead to a successful challenge.77_{Public statements made by an arbitrator is the third ground on}

which a challenge of an arbitrator of the PCA has been based in previous cases. In one case a respondent challenged the arbitrator appointed by the claimant based on comments the arbitrator had made about the respondent in a published interview. The respondent said the interview gave rise to a strong appearance of bias. Eventually the Secretary-General upheld the challenge because there were justifiable doubts as to the arbitrator’s impartiality.78_A

statement can be evidence of a lack of impartiality, but it must be carefully examined in the correct context.79_{The forth ground, issue conflicts, arises when an arbitrator does not have a}

certain relationship to one of the parties but has an issue with the subject matter of the

dispute. These issue conflicts can, for example, be found in previously expressed views of an arbitrator. The threshold to base a challenge on this ground is high because a successful challenge would mean that an arbitrator is unwilling or unable to consider other viewpoints

74_{D. Caron, M. Caplan, ‘The UNICITRAL Arbitration Rules: A Commentary’, Oxford Commentaries on}

International Law, Oxford University Press 2013, p. 208.

75_{Id, p. 211.}

77_{Id., p. 105.} 78_{Id., p. 106-107.}

79_{D. Caron, M. Caplan, ‘The UNICITRAL Arbitration Rules: A Commentary’, Oxford Commentaries on}

(24)

and arguments than the ones he has previously expressed, which is unlikely.80_{The final}

category on which challenges are based is ‘failure to act’ (which is now found in Article 12, paragraph 3, UNCITRAL Rules). This ground has nothing to do with the impartiality or independence of an arbitrator.

Article 11 of the UNCITRAL Rules contains an obligation for the arbitrator to disclose any circumstances that would likely give rise to justifiable doubts as to the

arbitrator’s impartiality or independence. This rule is similar to Arbitration Rule 6, paragraph 2, for ICSID which also obliges arbitrators to sign a declaration confirming their

independence.

In the Mauritius v UK case81_{, Mauritius argued that the standard for the challenge of}

an arbitrator should be ‘appearance of bias’. This case was arbitrated by an Arbitral Tribunal constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea. Mauritius argued that the standard of impartiality should be stricter in arbitration because i) there are less judges than at, for example, the ICJ, which means the opinion of one arbitrator is much more decisive, ii) the arbitrators at the PCA are not elected but unilaterally selected by State parties, and iii) most cases will not concern the judge’s home State.82_{The Tribunal}

eventually judged that the standard should not be ‘appearance of bias’ but rather the stricter form ‘specific prior involvement’ because they do not want to create any inconsistency by applying certain rules to an Annex VII procedure as compared to, for example, the ICJ or ITLOS procedures.83

Even though the accepted justifiable doubts as to impartiality and independence of arbitrators are not listed, there are several categories known based on which an arbitrator can be (successfully) challenged. Although the list of accepted grounds for challenges of

arbitrators of the PCA will never be exhaustive, the increasing number of cases and

challenges of arbitrators of the PCA provides the Court with the possibility to further specify those grounds (for example in the above-mentioned Mauritius v UK case).

4.3. Disqualification in the WTO Dispute Settlement System

The recusal of WTO panelists and Appellate Body members is rare.84_{The fact that recusals}

81_{Mauritius v UK, Reasoned Decision on Challenge, 30 November 2011.} 82_{Id., para. 61}

83_{Id., para. 168.}

(25)

are rare is partly due to the fact that parties are required to first attempt to reach a resolution in their dispute through the process of consultations85_{and the fact that the panelist selection}

works based on party agreement. There are however specific rules and procedures in place which are interesting to look at in the light of this chapter. The Dispute Settlement

Understanding Rules of Conduct (DSU Rules of Conduct)86_{govern these procedures.}

According to Article 8, paragraph 6, Dispute Settlement Understanding87_{, parties can only}

oppose nominated panel members for compelling reasons. However, in practice those oppositions are not always based on compelling reasons. Panel members are often rejected before the proceedings which lead the Secretariat to proposing an alternative panel member.88

This makes for less recusals during the actual proceedings. As stated in Section III paragraph 1 of the DSU Rules of Conduct each panelist or Appellate Body member needs to “(1)

adhere strictly to the provisions of the DSU; (2) to disclose the existence or development of any interest, relationship or matter that that person could reasonably be expected to know and that is likely to affect, or give rise to justifiable doubts as to, that person’s independence or impartiality; and (3) to take due care in the performance of their duties to fulfil these expectations, including through avoidance of any direct or indirect conflicts of interest in respect of the subject matter of the proceedings.” An illustrative list, which was annexed to

the DSU Rules of Conduct, contains issues that could be thought of in this process of disclosing certain interests, relationships or other matters.89_{Financial interests (e.g. loans,}

investments, shares), business interests (e.g. directorship), property interests relevant to the dispute in question, professional interests, other active interests (e.g. being an active part of an organization which has an agenda relevant to the dispute in question), considered

statements of personal opinion on issues relevant to the dispute in question (e.g. publications, public statements), and employment or family interests are listed. If any of these issues are applicable the panelist or Appellate Body member should disclose these in accordance with Section VI paragraph 2.

85_{Article 4 Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh}

Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994).

86_{World Trade Organization, Dispute Settlement Body, Rules of Conduct for the Understanding on Rules and}

Procedures Governing the Settlement of Disputes, WT/DSB/RC/1 (December 11, 1996) [hereinafter DSU Rules

of Conduct].

87_{Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes,}

Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) [hereinafter DSU].

(26)

Based on Section VIII of the DSU Rules of Conduct there is a possibility for

challenging a panelist or Appellate Body member. If any party to the dispute has evidence of a material violation of the obligations of independence, impartiality or confidentiality or the avoidance of direct or indirect conflicts of interest that may impair the dispute settlement mechanism, they must submit this evidence in a written statement to the Chair of the Dispute Settlement Body (for panelists, arbitrators and experts) or the Appellate Body (for Appellate Body members). When such a claim is based solely on an alleged failure of a panelist or Appellate Body members’ to disclose a relevant interest, relationship or other matter, there must also be “evidence of a material violation of the obligation of independence, impartiality,

confidentiality or the avoidance of direct or indirect conflicts of interest and that the integrity, impartiality or confidentiality of the dispute settlement mechanism would be impaired thereby”.90_{The procedures in the DSU Rules of Conduct for challenging WTO}

adjudicators require challenges to be well-founded and supported by adequate evidence.91

Parties are therefore cautious with challenging adjudicators.

Besides the above-mentioned explanations for the lack of challenges at the WTO (most importantly the panelist selection procedures, the illustrative list annexed to the DSU Rules of Conduct, and the high threshold for evidence) there are also reputational factors that contribute to this scarcity of challenges. WTO members fear they will damage their

reputation if they challenge a system which is widely considered to be highly effective and efficient. Also, the community of panelists is a closely linked group of legal professionals with grave trust in each other’s legal professionalism and ability to act impartially and independent.92

90_{DSU Rules of Conduct, Section VIII, paragraph 2.}

(27)

5. What would happen to the existing practice at the ICJ if other

standards were used?

After looking at the different standards and practices for the recusal/challenging of adjudicators in other fields in the previous chapter, I will now review whether the ICJ

practice would change if the standards of those other fields of adjudication were to be applied to the ICJ cases. In this chapter I will very briefly recap the standards used at the ICJ, ICSID, PCA, and WTO. In order to be able to determine what consequences the application of the other standards to the ICJ cases would have, I will apply the standards of the other fields of adjudication to the three known challenge cases of the ICJ.93_{Only after evaluating this}

hypothetical change of standard, I will be able to draw a conclusion concerning the consequences.

5.1. Brief Recap of Standards Used for Disqualification of Adjudicators

As explained in Chapter 2, the strict interpretation by the ICJ of the rules regarding the challenge and recusal of judges, in combination with a narrow definition of the term ‘the case’, results in a narrow approach as to when a judge should be disqualified.

Based on case law discussed in the previous chapter the threshold for disqualification of arbitrators at the ICSID based in Article 57 is quite high.94_{In order to successfully}

disqualify an arbitrator under Article 57 ICSID Convention the respondent must prove such facts that an informed reasonable person would conclude that there was a clear or obvious lack of the quality of being able to judge impartiality and independently.95

At the PCA most challenges are based on and determined under the UNCITRAL Rules. Based on the rules, any arbitrator may be challenged if there are circumstances that give rise to justifiable doubts as to the impartiality and independence of the arbitrator. In case law five broad grounds for such a challenge have been developed (as described in paragraph 4.2.1 above).

A panelist or Appellate Body member at the WTO can be challenged based on evidence of a material violation of the obligations of independence, impartiality or

93_{Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)}

Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ; Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Advisory Opinion) 2004 ICJ; South West Africa Cases (Ethiopia v. South Africa, Liberia, v. South Africa), Second Phase, Judgment, 1966 ICJ 6 (July 18).

94_{See supra note 65, 68, and 71.} 95_{See supra note 71.}

(28)

confidentiality or the avoidance of any conflict of interest that may impair the dispute settlement mechanism (as described in paragraph 4.3). The procedures in the DSU Rules of Conduct require challenges to be well-founded and supported by adequate evidence. The threshold for challenging an adjudicator at the WTO might be lower, but the system in place is so effectively and efficiently regulated that challenges are rare.

5.2. ICSID, PCA, and WTO Standards Applied to ICJ Challenge Cases

The three cases in which a judge of the ICJ was challenged were quite similar because the challenges were all based on the fact that judges made previous statements about the subject matter or had previously taken a position regarding that matter.96

If the standard of the ICSID had been applied to these three cases the outcome would not have been different. The ICSID has a high threshold for the challenging of adjudicators. In the Saipem v. Bangladesh case the decision stated that an arbitrator’s doctrinal opinion expressed in the abstract and without reference to the particular case do not affect the independence and impartiality of that arbitrator.97_{The previous statements in the Wall case}

and the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa case) would therefore not be sufficient grounds to successfully challenge a judge under the ICSID standard. The previous taken position of the judge in the third ICJ challenge case (the earlier discussed closed hearing without exact published details)98_would

also not, in my opinion, lead to a manifest lack of the qualities required by Article 14,

paragraph 1, of the ICSID Convention. In all three cases the facts would not lead an informed reasonable person to conclude that the challenged arbitrator clearly or obviously lacks the qualities of being able to exercise independent and impartial judgment.99_{The high threshold}

of the ICSID Convention would not lead to a different outcome in the known ICJ challenge cases.

Applying the standard used by the PCA (based on the UNCITRAL Arbitration Rules) to the three challenge cases of the ICJ would most likely also not lead to a different outcome in any of the cases, despite the fact that a successful challenge of an arbitrator of the PCA has once been based on comments made by an arbitrator about the respondent in a published

96_{See supra note 9 and 10.} 97_{See supra note 69.}

98_{South West Africa Cases (Ethiopia v. South Africa, Liberia v. South Africa), Second Phase, Judgment, 1966}

ICJ 6 (July 18).

99_{The high threshold of the ICSID as confirmed in Suez et al. v. Argentine Republic, Decision on a Second}

(29)

interview. If the interpretation of the Secretary-General would be followed by the ICJ they might have upheld the challenge in the Wall case, where the judge commented on the respondent in a published interview. However, as indicated earlier each statement has to be examined carefully in the correct context. In addition, the five broad grounds developed in PCA case law still seem to leave ample room for a narrow approach adopted by the ICJ in the three challenge cases. A successful challenge based on an issue conflict (or a previous taken position) would mean that an arbitrator is unwilling or unable to consider other viewpoints and arguments than the ones he has previously expressed, which is unlikely.100_{The three}

challenge cases of the ICJ could therefore, in my opinion, still have the same outcome under the PCA standard.

Under the WTO standard for the challenge of adjudicators there needs to be a material violation of the obligations of independence, impartiality or confidentiality or the avoidance of direct or indirect conflicts of interest that may impair the dispute settlement mechanism.101

Partly due to the illustrative list that has been annexed to the DSU Rules of Conduct the amount of challenge cases is limited at the WTO. By obligating adjudicators to disclose certain interests, relationships or other matters, parties know what they are up against. I believe that in the three challenge cases of the ICJ, the ICJ could still take the position that the statements made, or actions done by the challenged judges did not lead to a material violation of the obligation of independence, impartiality or confidentiality and that those previous statements do not mean that the subject judge cannot remain independent and impartial. Further, the ICJ can conclude that these statements and/or the previous taken position do not impair the dispute settlement mechanism. As a result, the three decisions to reject the challenges of the judges of the ICJ would, in my opinion, still be the same under the WTO standard.

As mentioned in paragraph 4.2.1, in the Mauritius v UK case, Mauritius argued that the standard for the impartiality of judges should different in inter-State arbitration as compared to at a permanent court or tribunal (e.g. the ICJ). The standard applied to

impartiality of judges should be stricter in inter-State arbitration. The Annex VII Tribunal did not uphold this argument brought by Mauritius because they did not want to create any inconsistency.102

The standards applied in different fields (ICSID, PCA, and WTO) to the challenge of

100_{See supra note 80.}

101_{DSU Rules of Conduct, Section VIII, paragraph 1.} 102_{See supra note 83.}

Challenge and Recusal of Judges of the International Court of Justice : Should the standard applied to the challenge and recusal of judges of the International Court of Justice be changed?