The Admission of Judges Ad Hoc In Advisory Proceedings: Some Reflections in the Light of the Namibia Case

In the Namibia case, the International Court of Justice for the first time in its history received an application for the appointment of a judge ad hoc in advisory proceedings. The application was made by South Africa on the basis of Article 83 of the Rules of Court which provides for the possibility of seating judges ad hoc in advisory procedings involving “a legal question actually pending between two or more States.” No state or international organization entitled to appear before the Court opposed the South African request, and no state other than South Africa submitted an application for a judge ad hoc. After an oral hearing (held in camera over strong South African protests 8) in which only South Africa presented argument, the Court, in its Order of January 29, 1971, decided, by a vote of 10 to 5, to reject South Africa's application. The Court offered no explanation for its decision at the time. Of the five dissenting judges, only Judges Onyeama and Dillard appended to the Order the reasons for their dissent. The remaining dissenting judges (and, by implication, the Court itself) feared that early disclosure of the reasons for their stands entailed the risk of prejudging substantive questions in the case. (As will be seen below, Judges Onyeama and Dillard had no cause to entertain similar fears.) With the delivery of the opinion, however, all five dissenting judges voiced strong criticism of the Court's refusal to admit a South African judge ad hoc.