New Report Highlights 'Moonlighting' by ICJ Judges But Practice Has Long Had Official Sanction

The ICJ statute forbids judges from engaging in any other occupation of a professional nature but the court told the UN in 1994 that this does not apply to paid international arbitration.

Washington: A new report, published just days after Britain lost its seat on the International Court of Justice, reveals that its candidate, Christopher Greenwood, had been moonlighting as an arbitrator while serving on the prestigious world court.

Article 16 of the ICJ statute says that an ICJ judge “may not exercise any political or administrative functions, or engage in any other occupation of a professional nature”.

But before Indian officials mount the moral barricades – India’s candidate Dalveer Bhandari beat Greenwood to the post for an ICJ judgeship last week – they may be well advised to consult experts in public international law who will tell them that the Article 16 restriction has traditionally never been applied to work the judges perform on the side as international arbitrators.

The report, published on Monday by the International Institute for Sustainable Development (IISD) in Geneva, identified Greenwood and six other current and 13 former ICJ judges who took served as arbitrators at the International Centre for Settlement of Investment Disputes (ICSID), where foreign and domestic investors challenge sovereign countries on policy issues.

While the new report does collate and quantify the extent to which ICJ judges are involved in arbitration proceedings on the side, the fact that they “moonlight” as arbitrators is an open secret that has been acknowledged and even described as a good thing by the court in a report to the United Nations General Assembly way back in 1994.

As Professor Chiara Giorgetti notes in her 2015 analysis of the recusal of judges on the ICJ,

The Court explicitly and definitively took up the question in its annual report to the General Assembly, where it confirmed that “the practice of the Court in permitting its members to engage in occasional activities outside of the Court that may be remunerated” included “acting as arbitrators in inter-State and private international arbitrations, serving in administrative tribunals or quasi judicial organs of specialised agencies, lecturing, [and] writing.”

The Court observed that this kind of occasional practice went back to “the origins of the Permanent Court of International justice” and observed that not only it was in conformity with the Statute of the Court; the repeated endorsement by the international organs and by the States that appointed members of the Court as arbitrators shows their awareness of the contribution that the members of the Court may, by this function, make to the development of international law, and of the benefits deriving therefrom for all institutions concerned. (emphasis added)

“The ICJ is the world’s most important and respected court charged with the sound administration of international justice,” said Nathalie Bernasconi-Osterwalder, the IISD report’s lead author. “Its representatives need to be held to the highest standards of independence.”

“To our knowledge,” the report says, “there has never been a formal challenge against an ICJ judge for taking on an arbitration case based on the prohibition to “engage in any other occupation of a professional nature” because the court itself must take a call on the issue.

The Wire emailed the ICJ press office for a reaction to the IISD report and will update this story with their response when it is received.

Greenwood was among the three ICJ sitting judges who most frequently worked as arbitrators. The two others were Peter Tomka from Slovakia, who was also court president, and James Crawford from Australia. An earlier British judge, Rosalyn O’Higgins, is also among the names figuring in the report.

Britain withdrew Greenwood last Monday after a tough fight against Bhandari for the last open ICJ seat. The battle continued for 11 rounds of voting in the UN General Assembly and the UN Security Council. Bhandari consistently won the UNGA vote while Greenwood was ahead in the UNSC.

When Greenwood’s term ends, this will be the first time Britain will not have a judge on the ICJ. That Europe is overrepresented in the ICJ did not seem to bother the British as they campaigned for Greenwood.

Following the publication of the report, Judge Bhandari confirmed that “he did not ever take an arbitration case since joining the ICJ,” according to Indian diplomatic sources.

Though Bhandari has not taken on any arbitration, he did raise eyebrows by giving an interview to an Indian newspaper after the ICJ’s recent interim order in the Kulbhushan Jadhav case where he hailed the court’s decision – to which he was a party – as “a great diplomatic victory for India”.

The ICJ remains the last hope for justice for weaker states against the more powerful ones. It is where disputes between states are adjudicated and where countries whose ideologies, policies and interests are ranged against each other, can stand on equal footing. Nicaragua won its landmark case against the United States in the 1980s, though enforcement of the ICJ ruling was another matter.

“We are not questioning the integrity of the judges who are being pulled into these other functions,” Bernasconi-Osterwalder,  said in a press statement.

“However, we are concerned that the court’s reputation could be damaged by the fact that some judges are simultaneously working as arbitrators in multiple cases. The ICJ is the world’s most important and respected court charged with the sound administration of international justice. Its representatives need to be held to the highest standards of independence,” she added.

Sitting ICJ judges acting as arbitrators and annulment committee members in treaty-based ISDS disputes known as of
July 31, 2017. Note: These numbers include treaty-based cases only, to the exclusion of contract-based cases. Credit: ISID

It is not as if an ICJ judge is living on the edge – the annual salary is $173,000 plus allowances for the inconvenience of relocating to the Netherlands. The salary is tax free in the tradition of the UN system and a hefty pension awaits them after they retire.

The ICJ judges who worked as international arbitrators would have collected hefty sums in daily wages – up to $3,000 a day.

The study identified 90 investor-state dispute settlement cases in which sitting ICJ judges have worked or are still working as arbitrators. If you consider all the 817 investor-state dispute settlements as of July 2017, it would mean that ICJ judges have sat as arbitrators in roughly 10% of all known investment treaty cases during their tenure, the report says.

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