1 Declaration of Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, UN Doc. A/Res/25/2625 (1970).

2 S. Rosenne, The Law and Practice of the International Court, 1920–2005 (2006), Vol. 1, at 120.

3 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, [1971] ICJ Rep. 16.

4 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, [1996] ICJ Rep. 6.

5 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment of 25 July 1974, [1974] ICJ Rep. 3. Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment [1974] ICJ Rep. 175. Nuclear Tests Case (Australia v. France), Judgment of 20 December 1974, [1974] ICJ Rep. 253. Nuclear Tests Case (New Zealand v. France), Judgment of 20 December 1974, [1974] ICJ Rep. 457. Trial of Pakistani Prisoners of War (Pakistan v. India) Order of 15 December 1973, [1973] ICJ Rep. 347. Aegean Sea Continental Shelf Case (Greece v. Turkey), Jurisdiction, Judgment of 19 December 1978, [1978] ICJ Rep. 3. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, [1980] ICJ Rep. 3.

6 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14.

7 See, e.g., Keith, K., ‘100 Years of International Arbitration and Adjudication’, (2014) 15 Melbourne Journal of International Law 1, at 13–14Google Scholar.

8 562 UNTS 71, 907 UNTS 129, 1 UNTS 9, 1354 UNTS, 1408 UNTS 270; for related action concerning the 1928 General Act for the Pacific Settlement of Disputes see 961 UNTS 354, 907 UNTS 194, 915 UNTS 324, 943 UNTS 450, 1120 UNTS 850; for India's denial of being a party to the 1928 General Act see, supra note 5, Pleadings 139, and Nuclear Tests cases, Pleadings Vol. II, 436.

9 E.g., General Assembly resolutions 2723 (xxv), 2818 (xxvi) and 3232 (xxix). Gross, L., ‘Review of the Role of the International Court of Justice’, (1972) 66 AJIL 479 CrossRefGoogle Scholar; for the related amendments of the rules of court, see De Arechaga, E.J., ‘The Amendments to the Rules of Procedure of the International Court of Justice’, (1973) 67 AJIL 1 CrossRefGoogle Scholar.

10 See the remarkable comments by a serving judge, Oda, S., ‘Dispute Settlement Prospects in the Law of the Sea’, (1995) 44 ICLQ 863 CrossRefGoogle Scholar (244 Hague Recueil 127).

11 Aegean Sea Continental Shelf case, supra note 5. By contrast in the latest triennium the President signed eight judgments; there were also six substantive orders.

12 Gros, A., ‘La Cour Internationale de Justice 1946–1986: les réflexions d'un juge’, in Dinstein, Y. (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989) 289 Google Scholar. See his comments on the elections, particularly of 1952 and 1966, the elections to the Presidency in 1967 and 1970, the politicization of the Court, what he saw as judicial misbehaviour, the reason, again as he saw it, leading to France's withdrawal of its acceptance of jurisdiction and the quality of recent decisions.

13 For another, the World Trade Organization (WTO) dispute settlement system, with the Appellate Body at its head, has, according to WTO officials, handled disputes worth at least US$ 1 trillion of world trade flows; two thirds of WTO members have participated in the processes, many of them with no earlier experience of international litigation. Since 1995 the Appellate Body has given 125 reports and awards including a number on general issues of international law. See, e.g., Appellate Report United States – Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, AB-1996-1, WT/DS/9, at 17 (the panel of three included two general international lawyers of broad professional experience). Other areas of rapid growth over the last 20 years are investment arbitration and international criminal prosecutions.

14 Sir G. Brennan, Chief Justice of the High Court of Australia, speech to the 12th South Pacific Judicial Conference, Sydney, 14 April 1997, at 6.

15 1966 International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 14.

16 GA Plenary, A/69/PV33, 30 October 2014, at 5, and PV34. Questions may be asked about how strongly that commitment is manifested in practice. Consider the limited number of states which have accepted jurisdiction and the reservations made by those which have. I take just one example. Among those speaking positively was the representative of Japan, see A/69/PV33, at 24, but compare the action taken by that country just a year later excluding many law of the sea matters from its acceptance of the jurisdiction of the ICJ. The justification it gave in terms of preferring the methods available under the UNCLOS is to be related to the position it took in the Southern Bluefin Tuna case 23 UNRIAA 1. See also A/70/PV.47, 5 November 2015, at 19.

17 See the emphasis placed on the provisions of Art. 20 of the ICJ Statute by Gros, supra note 12, at 291 and Davis S. Robinson, State Department legal adviser at the time of the Nicaragua case, (2003) ASIL Proceedings 277. That paper raises serious issues relating as well to the ethics of the parties and their representatives that are demonstrated in the case between Bahrain and Qatar: see the exchange of correspondence relating to 82 documents submitted by Qatar which were forgeries and also the separate opinion of Judge ad hoc Fortier [2001] ICJ Rep. 40, at 451–3. See also the exchange between Paul Reichler, counsel for Nicaragua in the case against the US in the mid-1980s, and Judge Stephen Schwebel, the Judge of US nationality at the time, in recent issues of the American Journal of International Law: (2012) 106 AJIL 102, at 316, 582 and 583. Robinson mentions a contact between members of the Nicaraguan team and a serving judge in the lead-up to the case. See also an account in a book published by the Government of Peru relating to its case with Chile (Peru and Chile in the Hague: An Example for the World (2014), 82) of a discussion between the Co-Agent and its proposed Judge ad hoc and further, the account by Alain Pellet of exchanges with a ‘civil law’ judge when he was counsel for Australia in the Nauru case in The International Lawyer as Practitioner (2000), 152.

18 The Statute of ITLOS calls for persons of recognized competence in the law of the sea as well as representation of the principal legal systems of the world and equitable geographic distribution. 1982 United Nations Convention on the Law of the Sea, Annex 6, Statute of the International Tribunal of the Law of the Sea, 1833 UNTS 3, Art. 2.

Although the professional qualification for ITLOS is limited to expertise in the law of the sea, its tasks, inevitably, call on more general skills in international law, and, to take a recent specific matter, issues about the extent of the Tribunal's rule-making powers and the conferral and exercise of advisory jurisdiction. See Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, Judgment of 2 April 2015, ITLOS. In terms of that Tribunal's specialist character it is striking that, in the 20 years since it was established, the ICJ has decided more substantive law of the sea cases than the Tribunal, and ad hoc tribunals have also had a major role.

19 Members of the ICC are to have established competence (a) in criminal law and procedure and the necessary relevant experience as prosecutor, advocate or judge, or (b) in relevant areas of international law such as international humanitarian law and the law of human rights and relevant professional experience (1998 Rome Statute of the International Criminal Court, 2187 UNTS 3, Art. 36). Crucial to the work of the ICC, as to the ad hoc criminal tribunals, are experience and skill in running large scale trials, often in a controversial political context. Early in the life of that Court an experienced trial judge was overruled on a critical procedural matter by colleagues elected on the basis of their established competence in relevant areas of international law. The consequence was an inevitably successful appeal, delays in the completion of the trial and extra cost. See Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals of Mr Thomas Lubanga Dyilo and the Prosecutor against rulings of Trial Chamber 1 of 14 July 2009, ICC-01/04-01/06 A 5, A. Ch., 8 December 2009. Some will recall as well the controversies over certain elections, essentially selections, to that Court of persons who appeared not to have even the minimum requirements, lacking real law qualifications. A Guardian columnist writing at the time of the launch of a book on the (s)election of international judges by Ruth Mackenzie et al. (Selecting International Judges: Principle, Process and Politics (2010)) spoke of a ‘toxic system’ for electing the world's most senior judges, a system which was ‘fundamentally undermining’ the legitimacy of international courts. See Daly, B.W., ‘Introductory Remarks’, (2011) 105 Proceedings of the Annual General Meeting (American Society of International Law) 67, at 67 CrossRefGoogle Scholar; quoting A. Hirsch, ‘System for Appointing Judges “Undermining International Courts”’, Guardian, 8 September 2010, available at www.theguardian.com/law/2010/sep/08/law-international-court-justice-legal. On Mackenzie's book, see also the review by Michael Reisman and Ramannjan Nadadur (2012) 106 AJIL 704, the passages from the Financial Times quoted there, 704–5, a second article in the issue of 15 September 2011 and a surprising reply from the Director of the International Legal Division of the Japanese Ministry of Foreign Affairs on 23 September 2011.

20 The members of the WTO Appellate Body are to be persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the WTO agreements, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 17(3). The general direction in respect of ‘law’ in the WTO text is supported by a more specific one that the agreements are to be interpreted in accordance with customary rules of public international law which the Appellate Body from the outset has taken as referring to Arts. 31–3 of the Vienna Convention on the Law of Treaties. See Appellate Report United States, supra note 13 and, e.g., Van Damme, I., ‘Treaty Interpretation by the WTO Appellate Body’, (2000) 21 EJIL 605 CrossRefGoogle Scholar.

21 Alexander Pope, An Essay on Man (1733).

22 The Institute of International Law, The Position of the International Judge (2011), Vol. 74 Annuaire 174. See also the Report of the Study Group of the International Law Association – the Burgh House Principles on the Independence of the International Judges (2004).

23 For the early period see, e.g., references in Keith, K., ‘International Court of Justice: Reflections on the Electoral Process’, (2010) 9 Chinese JIL 49 Google Scholar, at 61–4.

24 Study of the Amendments to be made to the Statute of the ICJ, Aix-en-Provence, 1954, Vol. 45 II, 296.

25 See for instance the critiques of one aspect of an ICTY decision in Linton, S. et al. (eds.), For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark (2015)Google Scholar, Ch. 26 and a ruling of the Special Tribunal for Lebanon in Saul, B., ‘The Special Tribunal for Lebanon and Terrorism as an International Crime: Reflections on the Judicial Function’, in Schabas, W. et al. (eds.), The Ashgate Research Companion to International Criminal Law (2012)Google Scholar, at 79.

26 The Inter-allied Committee in 1944 would have gone further and deleted Art. 9 altogether and reduced the number of judges from 15 to nine. W. Malkin, Report of the Informal Inter-allied Committee on the Future of the Permanent Court of International Justice: 10 February 1944 (1944), Cmd 6531, 39 AJIL Supp 1.

27 Ibid., at 45–6 and 129–30.

28 See, e.g., Keith, K., ‘Member of the Permanent Court of Arbitration’, in Saunders, C. and McCormack, T.L.H. (eds.), Sir Ninian Stephen: A Tribute (2007), 155, 163–7Google Scholar, nn 28–45 (250–1).

29 J.B. Bellinger III, ‘Remarks’, (2011) 105 Proceedings of the Annual General Meeting (American Society of International Law) 71.

30 Keith, supra note 28, at 164.

31 Keith, supra note 28, at 163.

32 Mackenzie et al., supra note 19.

33 The Institute of International Law, supra note 22, at Art. 1(6).

34 Robinson, P., ‘Remarks’, (2011) 105 Proceedings of the Annual General Meeting (American Society of International Law) 69, at 69 Google Scholar.

35 His opponent had nine votes in the Security Council in the first seven rounds of voting (and he only six) while his vote in the General Assembly went from 115 to 130 and his opponent's fell from 77 to 61 (97 was the required majority). The opponent's candidacy was finally withdrawn and he received 15 and 185 votes in the two bodies.

Some evidence is available of ‘jobs for the boys’. For instance in 1977 Queen Elizabeth's private secretary in discussion with Sir John Kerr, soon to leave his post as Governor-General of Australia, said that the issue of his departure ‘was one he had to decide for [himself]’ in the light of his discussions with the Prime Minister, but the private secretary raised with Kerr the possibility of his being appointed to the World Court as his next career move, P. Kelly and T. Branston, The Dismissal in the Queen's Name (2015), 8. The seat which was becoming available, held by de Castro of Spain, was taken by Roberto Ago of Italy, a formidable candidate who was easily elected. Note also the refusal of Sir Owen Dixon, the Chief Justice, to participate as the senior member of the Australian national group in the nomination in 1958 of Sir Percy Spender, a former Foreign Minister and then Australian Ambassador in Washington, as a candidate for the ICJ. The senior Indian judiciary appear to have something of a hold on a position, for instance, in elections to casual vacancies including a recent one in which a former legal adviser to the Indian foreign service, member of the International Law Commission (ILC), former judge ad hoc and member of the Institute of International Law was available. Madeleine Albright records that when she, as US Ambassador to the UN, was attempting to persuade Boutros Ghali to abandon his candidacy for re-election as UN Secretary-General one of her proposals was that he would be appointed to the ICJ. Madam Secretary – A Memoir (2003), 265.

36 Many commentators refer to a convention or practice or custom that P5 nationals will be elected. It is more than that. It follows from the requirement of the Statute, established in 1920, that candidates have a majority in the Council as well as in the Assembly. The assumption is that the P5 vote for candidates of all P5 nationality and only another three votes (of ten) are needed.

37 Secretary-General, Comprehensive Review of the Pension Schemes for the Members of the International Court of Justice and Judges of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/66/617 (2011), para. 58 and Advisory Committee, Comprehensive Review of the Pension Schemes for the Members of the International Court of Justice and Judges of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/66/709 (2012), para. 29. But see to the contrary, President of the International Court of Justice, Letter dated 1 February 2012 from the President of the International Court of Justice addressed to the President of the General Assembly, UN Doc. A/66/726 (2012).

38 See also C.G. Weeramantry, Towards One World: The Memoirs of Judge C. G. Weeramantry Vol. III: The International Court and Thereafter (2014) at 282 (but he sought re-election) and his comment on the advantages for P5 nationals in terms of election to the presidency, at 278–9.

39 Case Concerning Aerial Herbicide Spraying (Ecuador v. Colombia), Order Removing the Case from the List, Order of 13 September 2013, [2013] ICJ Rep. 278.

40 Resolution Concerning the Internal Judicial Practice of the Court (adopted on 12 April 1976), Art. 1.

41 See, e.g., the orders of 31 May 2016 and 16 June 2016 in Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua).

42 P. Tomka, President of the International Court of Justice (speech to the Sixty-Ninth Session of the General Assembly of the United Nations, 30 October 2014), published as Tomka, P. and Proulx, V-J., ‘The Evidentiary Practice of the World Court’, in Sainz-Borgo, J.C. (ed.), Liber Amicorum Gudmundur Eiriksson (2016)Google Scholar.

43 The practice of the Court of not providing specific references to national law makes it difficult to document this point, but consider the recognition of the principle of res judicata by the Court in the Genocide case in 2007 and by the 1920 Advisory Committee, the development by the PCIJ in its Rules and practice of the principle of the equality of the parties, the explicit recognition of the elaboration of that principle given by the Human Rights Committee, relating to national law, in the IFAD case and the propositions relating to onus of proof, the standard of proof, and the relevance of and weight to be given to evidence, most recently in the 2015 Genocide case.

44 Art. 60 of the Rules and Practice Direction VI.

45 Case Concerning the Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation) Request for the Indication of Provisional Measures, Order of 15 October 2008, [2008] ICJ Rep. 353.

46 E.g., Damrosch, L.F. (ed.) The International Court of Justice at a Crossroads (1987)Google Scholar; Peck, C. and Lee, R.S. (eds.) Increasing the Effectiveness of the International Court of Justice (1996)Google Scholar; (1996) 17 Aust YBIL 1–186; V. Lowe (ed.) Fifty Years of the International Court of Justice . . . (1996); International Court of Justice, A Dialogue at the Court (2006); G. Gaja and J. Grote Stoutenburg (eds.) Enhancing the Rule of Law through the International Court of Justice (2014); Crawford, J. et al., ‘The International Court at 70’, (2016) 7 JIDS 225–498 Google Scholar.

47 A. Hammarskjold, ‘Sidelights on the Permanent Court of International Justice’, (1927) 25 Mich 2 Rev 327; see also for that earlier period the valuable comment in 1930 by Charles Evans Hughes who had just left the PCIJ to become Chief Justice of the United States, ‘The World Court as a Going Concern’, (1930) 11 BYIL 180. For a later account see Jennings, R., ‘The Internal Judicial Practices of the International Court of Justice’, (1988) 59 BYIL 31 Google Scholar.

48 Hambro, E., ‘Dissenting and Individual Opinions in the International Court of Justice’, (1956) 17 Zeitschrift fur auslandisches und offentliches Recht und Volkerrecht 229 Google Scholar.

49 See, e.g., Keith, K., ‘The International Court of Justice: Primus inter pares?’, (2008) 5 International Organizations Law Review 7, at 16–17 CrossRefGoogle Scholar.

50 As of 17 March 2016.

51 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed Against the International Fund for Agricultural Development, Advisory Opinion of 1 February 2012, [2012] ICJ Rep. 10.

52 Statute of the International Court of Justice, Art. 57.

53 Free City of Danzig and International Labour Organization, Advisory Opinion of 26 August 1930, PCIJ Rep. Series B No 18, at 18 (Judge Anzilotti, Dissenting Opinion).

54 The Minquiers and Ecrehos Case (France v. United Kingdom), Judgment of 17 November 1953, [1953] ICJ Rep. 47, at 74 (Judge Basdevant, Separate Opinion).

55 A. Zimmerman et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), 16, para. 37.

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

57 1969–70 Yearbook of the Court 115.

58 See, e.g., on the law of the sea, 1956 Vol. II Yearbook of the ILC, at 266–7, 277; on the law of treaties, 1966 Vol. II, Yearbook of the ILC, at 201–4, 211–12, 218–28, 241–4, 253–4, 257–60; and on state responsibility, 2001 Vol. II(2) Yearbook of the ILC, at 32–41, 47–9, 51, 53, 56–61, 64–8, 71–8, 82–5, 88–91, 93–100, 107, 110–18, 120–37 and 140–3.

59 C. Schulte, Compliance with Decisions of the International Court of Justice (2004) and Paulson, C., ‘Compliance with Final Judgments of the International Court of Justice since 1987’, (2004) 98 AJIL 434 CrossRefGoogle Scholar.

60 The executions of Mexican citizens in breach of the order made by the Court in the follow-up to the Avena case and the reaction of the Colombian President to the unanimous 2011 ruling on that country's maritime boundary with Nicaragua.

61 See the Status of Treaties section in the United Nations Treaty Collection (online), e.g., Ch. III, 1 and 2; Ch. IV, 1 nn 19, 20, 22, 24–6, Ch. IV, 2 nn 18, 27, 28; Ch. IV, 9, n 16; Ch. V, 2 (post 1989 accessions without reservations); Ch. VI, 16, nn 20, 7, 23, 26; and Ch. XVI, 1, nn 5, 14, 16, 19, 20, 23.

62 France, India, Iran and the United States. Against that are the recent refusals by three states to participate in proceedings before international tribunals: China in the ITLOS proceeding brought by the Philippines, the Russian Federation in the ITLOS proceeding brought by the Netherlands and Croatia in its territorial and maritime proceeding with Slovenia. Pakistan in the NPT case brought by the Marshall Islands at the oral stage in the ICJ, in a letter to the Court explained that it had submitted in its detailed countermemorial that the Court did not have jurisdiction and that the application was inadmissible; its participation in the oral hearing would not add anything (CR 2016/3 at 6). See also the comments by counsel for the United Kingdom in the NPT case brought against it by the Marshall Islands, CR 2016/3 at 32–3 especially para. 59 and CR 2016/7 at 21–2, paras 44–6 (a finding of jurisdiction ‘would without doubt raise searching questions about . . . the wisdom of optional clause declarations’ – the UK being the only P5 state to have such a declaration). See also note 16 for the actions of a state a national of which has been a member of the Court for all but six of the past 55 years.

63 Manila Declaration on the Peaceful Settlement of International Disputes, UN Doc. A/Res/37/10 (1982), at 2, para. 5.

64 2005 World Summit Outcome, UN Doc. A/Res/60/1 (2005), at 29, para. 134(f).

65 Declaration of the High Level Meeting of the General Assembly on the Rule of Law at the National and International Level, UN Doc. A/Res/67/1 (2012), at 5, para. 31.

66 See, e.g., S.M. Schwebel, President of the International Court of Justice ‘Address’ (Address to the Plenary Session of the General Assembly of the United Nations, 26 October 1999) and G. Guillaume, President of the International Court of Justice, ‘Address’ (Address to the United Nations General Assembly, 26 October 2000).

67 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.702 (2006), at 7, para. 14(1). The detailed Report draws on an extensive range of sources including many international court and tribunal decisions, notably those of the ICJ and its predecessor.

68 Case Concerning Maritime Dispute (Peru v. Chile), Judgment, Judgment of 27 January 2014, [2014] ICJ Rep. 3.

69 Aerial Herbicide Spraying case, supra note 39.

70 See supra note 5, [1974] ICJ Rep. 271 (para. 58) and 477 (para. 61).

71 Jennings, supra note 47, at 46–7. See also his ‘Collegiate Responsibility and Authority of the International Court of Justice’ in Dinstein (ed.), supra note 12, at 343.