Limitation of judges securing impartiality & Access to the ICJ
Statute of the ICJ reinforcing the principal of impartiality and freedom of governmental influence checks the indulgence of its members in any sort of other professional activity. Article# 16 and 17 categorically prohibits the members of ICJ from ‘exercising political and administrative functions’ and ‘being an agent, counsel or advocate for any party’.
A couple of important references in this regard further clarify the point;
South West Africa Cases, 2nd Phase (1966)
Judge Zafarullah Khan of Pakistan was excluded from participating in the decision of this case as he had played role as a member of the Pakistan to UN in the past when matter of South West Africa was under discussion.
Namibia Case (1971)
In this case, South Africa opposed the participation of Judge Zafarullah Khan and a number of other judges arguing that they all have been the representatives of the national groups of their respective states had participated in activities directed against South Africa’s presence in South West Africa. But their request was overruled as it was held that, ‘a judge may have participated in his former capacity as representative of his government’. The previous case was different in a sense that Zafarullah has participated in decision making over the matter pertaining to South West Africa but here no participation is evident as in accordance with Article#17.
ACCESS TO THE ICJ
Access to the court must be assessed by each state eager to file a case in the ICJ as has been defined separately for the members as well as non-members of the ICJ statute.
Members of the UN
Member states of the UN can bring their dispute in front of the Court as under Article#93(1) of the UN Charter; all members of the UN are ipso facto parties to the statute of the ICJ as well.
Non-Members of the UN
Article#93(2) of the Statute also provides opportunity to the non-members of UN for reporting their disputes to the court but after having become the party to the statute on the conditions to be prescribed by the General Assembly and Security Council. Such conditions were mentioned once in 1946 on the request of Swiss Government;
- Acceptance of the ICJ statute
- Acceptance of all the obligations of a member of the UN
- To maintain an undertaking to contribute to the expenses of the court