Conversation with ICJ Judge Iwasawa

Rarely do members of the International Court of Justice (ICJ) leave their headquarters at the Peace Palace in The Hague, but Judge (that’s how he is addressed, not “Justice” as how members of the US and PH Supreme Court are called) Yuji Iwasawa made an exception by visiting our country several days ago.

During a private lunch hosted in his honor by the Department of Foreign Affairs (arranged by Usec Eduardo Malaya and PH Ambassador to The Netherlands Jaime Victor Ledda), the softspoken jurist explained how decisions are reached in the ICJ, the highest judicial organ of the United Nations (UN).

Unlike in our Supreme Court and in those of the United States and many other countries, the ICJ does not assign the writing of a decision to one member whom we locally call “ponente.” Instead, after oral arguments are held and written briefs or memorials are submitted, the 15 judges carefully discuss, deliberate and vote en banc. However, at the request of the parties, a case may be decided only by five judges.

Thereafter, the Court elects a committee to write collegially a draft of the decision that would again be discussed, scrutinized, corrected and voted upon part by part. In this sense, the decision is not attributed to or written by only one judge. However, dissenters are allowed to write their dissents or separate opinions under their own names.

If a litigant does not have a citizen sitting as an incumbent ICJ judge, it may choose a person of any nationality (its own citizen or a foreigner) to sit as an ad hoc ICJ judge for that case only. In this sense, 16 judges may hear and decide the case.

He stressed that enforcement had not been a problem in the ICJ because the defeated parties always complied with the judgments, except in one decision, dated June 27, 1986, directing the United States to pay reparations for its support of the Contra rebels against Nicaragua, which was elevated to the UN. The United States vetoed a compliance call by the Security Council and ignored a similar resolution of the General Assembly. In the end, however, the dispute was settled peacefully through diplomacy and negotiation.

He attributed this voluntary compliance by the defeated parties (other than that one exception) to the UN Charter which requires the ICJ to assume jurisdiction only after all the state-parties have agreed to participate and thus to be bound by any decision rendered.

In my view, the ICJ is unlike the ad hoc arbitral tribunal that recognized our maritime entitlements. It is a permanent court where the judges are not chosen by the litigants. Their term of office is fixed at nine years. Their decisions constitute international law and judicial precedents. In contrast, the ad hoc arbitrators were chosen to decide only one case. After rendering their “award,” they were disbanded. Thus, their award is not a part of international law.

Moreover, the ICJ was created by the 1945 UN Charter, unlike the arbitral tribunal that was created only for that particular case brought under the authority of the 1982 UN Convention on the Law of the Sea or Unclos. The Permanent Court of Arbitration (PCA) served as the tribunal’s “Registry,” the rough equivalent of our Office of the Clerk of Court.

To be clear, the PCA is not a “court,” though, like the ICJ, it is also headquartered at the Peace Palace in The Hague. For a detailed description of its work as a “Registry,” please see my column on Sept. 11, 2016.

Judge Iwasawa officially thanked me, retired CJ Reynato S. Puno and retired Justice Jose C. Vitug for nominating him to the ICJ to serve the unexpired term of another Japanese, Judge Hisashi Owada, who retired after his daughter became the Empress of Japan last year.

Together with Judge Raul C. Pangalangan of the International Criminal Court, we nominated him in our capacity as the four Filipino members of the PCA. Judge Pangalangan, who is based in The Netherlands, was not able to join the lunch.

Among the many activities here of Judge Iwasawa was his keynote of the Asian Society of International Law Conference chaired by former presidential spokesperson Harry Roque, with Prof. Elizabeth Pangalangan, wife of Judge Pangalangan, as Philippine chapter chair. He also delivered a lecture at the Philippine Judicial Academy.

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