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Thomas Buergenthal: Judge of the International Court of Justice (2000–10)

Published online by Cambridge University Press:  11 February 2011

KENNETH KEITH
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Abstract

Thomas Buergenthal retired as a judge of the International Court of Justice in September 2010 after ten years of service and participating in 38 substantive decisions. This tribute to a member of the Court who arrived with outstanding and formidable scholarly qualifications, especially but not only in the field of international human rights, also draws on his earlier tragic, harrowing, and ‘lucky’ years. On the basis of the public record, for much of the work of the Judges as members of a collegial body is not public, the article emphasizes Thomas Buergenthal's commitment to the independence of judicial office, as demonstrated particularly in cases brought against his own country; to the sound administration of justice; to the indispensability of courts in any system of ordered government, national or international; and more generally to principle.

Type
INTERNATIONAL COURT OF JUSTICE
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 163 - 171
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 T. Buergenthal and S. Murphy, Public International Law in a Nutshell (2007).

2 T. Buergenthal, Law-Making in the International Civil Aviation Organization (1969).

3 L. B. Sohn, ‘Tom Buergenthal: My Student, Colleague and Cherished Friend’, (1984), 34 AULR XV.

4 For another example from that time, see R. R. Baxter and T. Buergenthal, ‘Legal Aspects of the Geneva Protocol’, (1970) 65 AJIL 853.

5 New Zealand Air Line Pilots Assn Inc. v. Attorney-General [1997] NZLR 269, at 276. The book was earlier cited by Judges Dillard and Arechega in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972, [1972] ICJ Rep. 46, at 97 and 142.

6 South West Africa (Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6.

7 Barcelona Traction, Light and Power Company (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, [1970] ICJ Rep. 3.

8 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, [2001] ICJ Rep. 40.

9 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), Advisory Opinion of 22 July 2010, [2010] ICJ Rep.

10 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Beligium), Judgment of 14 February 2002, [2002] ICJ Rep. 3.

11 The application was filed on 1 June 2010. One valuable development over judge Buergenthal's time at the Court to which he made a major contribution was the establishment of a corps of clerks to the judges. As he arrived, the system of university trainees supported at first by one university and later by ten or more was just being established. As he leaves, in addition to that pool, every judge has one clerk each.

12 Avena and Other Mexican Nationals (Mexico v. United States of America), provisional measures 2003, merits 2004, provisional measures 2008, interpretation 2009, [2003] ICJ Rep. 72, [2004] ICJ Rep. 112, [2008] ICJ Rep. 311, [2009] ICJ Rep. 3.

13 E.g., A. A. Cançado Trinidade (ed.), The Modern World of Human Rights: Essays in Honour of Thomas Buergenthal (1996).

14 LaGrand (Germany v. United States of America), Judgment 2001, [2001] ICJ Rep. 466.

15 Ibid., at 515–16.

16 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment 2004, [2004] ICJ Rep. 12, at 71–2.

17 Ibid., at 61(2).

18 LaGrand (Germany v. United States of America), Judgment of 27 June 2001, [2001] ICJ Rep. 466, at 548 (Judge Buergenthal, Dissenting Opinion).

19 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 30 January 2004, [2004] ICJ Rep. 3, at 7 (Judge Buergenthal, Dissenting Opinion).

20 Ibid., at 7–11. Note the final words of the opinion: ‘I have no doubts whatsoever about the personal integrity of Judge Elaraby for whom I have the highest regard, not only as a valued colleague but as a good friend.’

21 Faurisson v. France, CCPR/C/58/D 550/1993, 16 December 1996.

22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 240 (Judge Buergenthal, Declaration). See also his consideration of fact-finding in Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, [2003] ICJ Rep. 161, at 283–9 (Judge Buergenthal, Separate Opinion).

23 Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12, at 28–9, para. 46.

24 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 279, at 330 (Judges Ranjeva, Guillaume, Higgins, Kooijmans, Al Khasawneh, Buergenthal and Elaraby, Joint Declaration).

25 Ibid., at 330–1.

26 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, [2002] ICJ Rep. 219.

27 Ibid., at 258.

28 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, [2007] ICJ Rep. 3.

29 Ibid., at 21.

30 Ibid., at 22–5.

31 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3.

32 Ibid., at 64. They discuss the (non-)ultra petita rule (66–8) – a matter also addressed by Judge Buergenthal in Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, [2003] ICJ Rep. 161, at 270–4 (Judge Buergenthal, Separate Opinion).

33 Ibid., at 80.

34 Ibid., at 85.

35 Thomas Buergenthal, A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy, originally published in 2007, as Ein Glückskind, English edition 2009, valuably reviewed by Lori Fishler Damrosch in (2010) 104 AJIL 307.

36 www.media.american.edu/speeches/buergenthal.htm (last accessed 4 August 2010).

37 www.gwu.edu/~newsctr/newscenter/commoncementø4/buergenthal_remarks.html/.