Enhancing the Rule of Law Through the International Court of Justice [1 ed.] 9789004278561, 9789004273191

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Enhancing the Rule of Law through the International Court of Justice

Developments in International Law VOLUME 68

The titles published in this series are listed at brill.com/diil



Enhancing the Rule of Law through the International Court of Justice Edited by

Giorgio Gaja and Jenny Grote Stoutenburg

LEIDEN | BOSTON

Cover Illustration: Peace Palace. Lybil Ber © 2012 Library of Congress Cataloging-in-Publication Data  Enhancing the rule of law through the International Court of Justice / edited by Giorgio Gaja and Jenny Grote Stoutenburg.  pages cm. — (Developments in international law ; volume 68)  Includes index.  Includes papers presented at a conference entitled “The International Court of Justice in the Service of Peace and Justice” which took place on 23 September 2013” at the Peace palace at The Hague. — Preface.  ISBN 978-90-04-27319-1 (hardback : alk. paper) — ISBN 978-90-04-27856-1 (e-book) 1. International Court of Justice—Congresses. 2. International courts—Congresses. I. Gaja, Giorgio, editor. II. Grote Stoutenburg, Jenny, editor.  KZ6275.E54 2014  341.5’52—dc23

2014017966

This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. issn ����-533� isbn ��� �� �� �731� 1 (hardback) isbn ��� �� 0� �7�56 1 (e-book) Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Preface  vii Abbreviations  viii 1 Reflections on a Century of International Justice and Prospects for the Future  1 Antônio Augusto Cançado Trindade 2 Between the Quest for Universality and its Limited Jurisdiction: The Role of the International Court of Justice in Enhancing the International Rule of Law  33 Andreas Zimmermann 3 Cooperation and Competition between the International Court of Justice and the Security Council  47 Chehrazad Krari-Lahya 4 Judicial Integrity and the Advisory Jurisdiction of the International Court of Justice  63 Christopher Greenwood 5 Peace, Justice, and Provisional Measures  75 Hugh Thirlway 6 Preventing Conflicts between the Court’s Orders on Provisional Measures and Security Council Resolutions  87 Giorgio Gaja 7 Act-dependent Judicial Review of Security Council and General Assembly Resolutions  93 Rosa Möhrlein 8 The Effects of International Legal Obligations in Domestic Law in Light of the Judgment of the Court in the Medellín Case  113 Ronny Abraham

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contents

9 Decisions of the International Court of Justice on Disputes Concerning Internal Law  119 Mariko Kawano 10 The Court’s Contribution to Determining the Content of Fundamental Principles of International Law  139 Marcelo Kohen 11 The International Court of Justice: Bestriding Past and Present Mohamed Bennouna  151 Table of Cases  157 Index  169

Preface In the context of the celebrations of the centenary of the Peace Palace at The Hague, the President of the International Court of Justice, Peter Tomka, convened a conference entitled “The International Court of Justice in the Service of Peace and Justice” which took place on 23 September 2013. The present volume collects the revised papers presented at the conference, together with some other contributions written by judges of the Court who took part in the conference. It includes two contributions which were selected on the basis of a call to submit papers for the conference. The subject-matter of the conference and of this volume is very wide, ranging from reflections on the nature of judicial dispute settlement in a historical perspective to contributions discussing incentives and barriers for seizing the Court, the Court’s advisory jurisdiction, its power to indicate provisional measures and to review acts of the political organs of the United Nations, to articles exploring the effect of the Court’s judgments in domestic legal systems and the way the Court ascertains fundamental principles of international law. No attempt can be made in this brief preface to offer a comprehensive survey or even to recall the most important issues. What can be said is that the aim of the volume is to present views pointing to possible developments concerning these issues. There is no general design encompassing these views, which reflect the personal opinions of their authors and are not meant to involve the institutions to which the authors may belong. What they have in common is that the suggested developments are all intended to contribute to enhancing the rule of law in the international community.

G.G. and J.G.S.

Abbreviations CERD

International Convention on the Elimination of All Forms of Racial Discrimination DRC Democratic Republic of the Congo ECtHR European Court of Human Rights ed. edited by esp. especially GA General Assembly IACtHR Inter-American Court of Human Rights ibid. ibidem ICC International Criminal Court ICJ International Court of Justice IFAD International Fund for Agricultural Development ILC International Law Commission ILO International Labour Organization ILOAT International Labour Organization Administrative Tribunal ITLOS International Tribunal for the Law of the Sea NAFO Northwest Atlantic Fisheries Organization no(s). number(s) OAS Organization of American States para(s). paragraph(s) PCIJ Permanent Court of International Justice p(p). page(s) Res. Resolution SC Security Council UN United Nations UNAT United Nations Administrative Tribunal UNC United Nations Charter UNGA United Nations General Assembly UNSC United Nations Security Council US United States vol. volume WHO World Health Organization

chapter 1

Reflections on a Century of International Justice and Prospects for the Future Antônio Augusto Cançado Trindade

Introduction: The Emergence of International Tribunals

On the occasion of the celebration (on 23 September 2013), by the International Court of Justice, of the centenary of the Peace Palace, I propose, in dwelling upon the topic ‘A Century of International Justice and Prospects for the Future’, to present a vue d’ensemble of a century of international justice, the lessons learned, and the perspectives for the future. May I begin by recalling that, six years ago, we had the thoughtful celebration, of which I guard the best memories, of another centenary, that of the Second Hague Peace Conference (of 1907), held in the premises of the Hague Academy of International Law. That workshop marked the centenary of the birth of international tribunals, of the judicial settlement of international disputes. As I had the occasion to ponder in that centennial celebration,1 by then there were already calls for the creation of permanent courts or tribunals, as illustrated by two initiatives: first, to render permanent a Court of Arbitral Justice,2 as from the model of the Permanent Court of Arbitration envisaged in the First Hague Peace Conference (of 1899), and secondly, to establish an International Prize Court, with access to it granted to individuals. The proposal * Judge at the International Court of Justice; Former President of the Inter-American Court of Human Rights; Emeritus Professor of International Law at the University of Brasília, Brazil. This contribution is an abridged version of the author’s address; for its full text, see Antônio Augusto Cançado Trindade and Dean Spielmann, A Century of International Justice and Prospects for the Future/Rétrospective d’un siècle de justice internationale et perspectives d´avenir (Oisterwijk: Wolf Legal Publishers, 2013), 1–44. 1 Antônio Augusto Cançado Trindade, “The Presence and Participation of Latin America at the II Hague Peace Conference of 1907,” in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque de 2007), ed. Yves Daudet (Leiden/La Haye: Académie de Droit International/Nijhoff, 2008), 66–73, and see also 81–84, 110–112, 115–117, 122 and 205– 206 (debates). 2 See David J. Bederman, “The Hague Peace Conferences of 1899 and 1907,” in International Courts for the Twenty-First Century, ed. Mark W. Janis (Dordrecht: Nijhoff, 1992), 10–11.

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for a permanent Court of Arbitral Justice as a whole was to project itself on the advent of judicial solution proper, at international level, as it became one of the sources of inspiration for the drafting of the Statute of the PCIJ in 1920.3 And although the projected International Prize Court, set forth in the XII Hague Convention of 1907, never saw the light of day, as the Convention did not enter into force, it presented issues of relevance for the evolution of international law, namely: first, it foresaw the establishment of a jurisdiction above national jurisdictions to decide on last appeal on maritime prizes; secondly, it provided, for example, in such circumstances, for the access of individuals directly to the international jurisdiction;4 thirdly, it envisaged a type of international compulsory jurisdiction; and fourthly, it admitted the proposed Court’s free authority to decide (the compétence de la compétence).5 The 1907 debates of the Second Hague Peace Conference led to the prevailing view of granting individuals direct appeal before the projected International Prize Court. Yet, it was elsewhere, in Latin America, still in the year of 1907, that the first modern international tribunal—the Central American Court of Justice—came to operate. It did so for ten years, granting access not only to States but also to individuals;6 in its decade of operation, the Court was seized 3 See Shabtai Rosenne, “Introduction,” in The Hague Peace Conferences of 1899 and 1907 and International Arbitration—Reports and Documents, ed. Shabtai Rosenne (The Hague: T.M.C. Asser Press, 2001), XXI. And see also Arthur Eyffinger, “A Highly Critical Moment: Role and Record of the 1907 Hague Peace Conference,” Netherlands International Law Review 54 (2007): 217 and 227. 4 It was then admitted that the individual is “not without standing in modern international law”: James Brown Scott, “The Work of the Second Hague Peace Conference,” American Journal of International Law 2 (1908): 22. The view prevailed that it would be in the interest of States—particularly the small or weaker ones—to avoid giving to this kind of cases the character of inter-State disputes: “les litiges nés des prises garderaient [. . .] le caractère qu’ils avaient en première instance [. . .], affaires regardant d’un côté l’État capteur et de l’autre les particuliers”: Stelio Séfériadès, “Le problème de l’accès des particuliers à des juridictions internationales,” Recueil des Cours de l’Académie de Droit International de La Haye 51 (1935): 38–40. 5 João Cabral, Evolução do Direito International (Rio de Janeiro: Typ. Rodrigues & Cia., 1908), 97–98. On the evolution of this last point (the ‘compétence de la compétence’ of international tribunals), see, generally, Ibrahim F.I. Shihata, The Power of the International Court to Determine Its Own Jurisdiction (Compétence de la Compétence) (The Hague: Nijhoff, 1965), 1–304. 6 Antônio Augusto Cançado Trindade, “Exhaustion of Local Remedies in International Law Experiments Granting Procedural Status to Individuals in the First Half of the Twentieth Century,” Netherlands International Law Review 24 (1977): 376.

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of ten cases, five lodged with it by individuals and five inter-State cases.7 It was in this respect truly pioneering,8 and contributed to the gradual expansion of international legal personality. The very advent of a permanent international jurisdiction at the beginning of the 20th century, before the creation of the PCIJ, was thus not marked by a purely inter-State outlook of the international contentieux.9

Lessons from the Past

At the time of the drafting and adoption, in 1920, of the Statute of the Permanent Court of International Justice, a choice was, however, made for a strictly inter-State dimension for its exercise of the international judicial function in contentious matters. Yet, as I have pointed out in my separate opinion to the ICJ’s advisory opinion on a Judgment of the ILO Administrative Tribunal

7 See ibid., 376–377; and see Friedrich A. von der Heydte, “L’individu et les tribunaux internationaux,” Recueil des Cours de l’Académie de Droit International de La Haye 107 (1962): 321. 8 Carlos J. Gutiérrez, La Corte de Justicia Centroamericana (San José de Costa Rica: Edit. Juricentro, 1978), 42, 106 and 150–152. 9 The ideal of an international judicial instance, beyond the inter-State dimension, had already found expression in earlier experiments which granted procedural capacity to individuals, in the era of the League of Nations, such as the systems of minorities (including Upper-Silesia) and of territories under mandates, and the systems of petitions of the Aaland Islands and of the Saar and of Danzig, besides the practice of mixed arbitral tribunals and of mixed claims commissions, of the same epoch: see Jean Wittenberg, “La recevabilité des réclamations devant les juridictions internationales,” Recueil des Cours de l’Académie de Droit International de La Haye 41 (1932): 5–135; Julius Stone, “The Legal Nature of Minorities Petition,” British Year Book of International Law 12 (1931): 76–94; Marcel Sibert, “Sur la procédure en matière de pétition dans les pays sous mandat et quelques-unes de ses insuffisances,” Revue générale de droit international public 40 (1933): 257–272; Marc St. Korowicz, Une expérience de droit international. La protection des minorités de Haute-Silésie (Paris: Pedone, 1946), 81–174; Carl A. Nørgaard, The Position of the Individual in International Law (Copenhagen: Munksgaard, 1962), 109–128; Cançado Trindade, “Exhaustion of Local Remedies,” 373–392. Those experiments paved the way, in the era of the United Nations, for the consolidation of the mechanisms of international individual petition: see Jean Beauté, Le droit de pétition dans les territoires sous tutelle (Paris: Librairie Générale de Droit et de Jurisprudence, 1962), 1–256; Maxime E. Tardu, Human Rights—The International Petition System (Dobbs Ferry, N.Y.: Oceana, 1979–1985).

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upon a Complaint Filed against the IFAD,10 the fact that the Advisory Committee of Jurists did not find, in 1920, that the time was ripe to grant access to the PCIJ to subjects of rights other than States (such as individuals), did not mean that a definitive answer had been found to the question at issue. The fact that the same position was maintained at the time of adoption in 1945 of the Statute of the ICJ did not mean a definitive answer to the question at issue either. The question of access of individuals to international justice, with procedural equality, continued to draw the attention of legal doctrine ever since, throughout the decades. Individuals and groups of individuals began to have access to other international instances, reserving the PCIJ, and later the ICJ, only for disputes between States. The dogmatic position taken originally in 1920, on the occasion of the preparation and adoption of its Statute, did not hinder the PCIJ to deal with cases pertaining to the treatment of minorities and inhabitants of cities or territories with a juridical statute of their own. In considerations developed in the examination of such matters, the PCIJ went well beyond the inter-State dimension, taking into account the position of individuals themselves (as in, e.g., inter alia, the advisory opinions on German Settlers in Poland, 1923; on the Jurisdiction of the Courts of Danzig, 1928; on the Greco-Bulgarian “Communities”, 1930; on Access to German Minority Schools in Upper Silesia, 1931; on Treatment of Polish Nationals in Danzig, 1932; on Minority Schools in Albania, 1935).11 Ever since, the artificiality of that dimension became noticeable and acknowledged, already at an early stage of the case-law of the PCIJ. The choice in 1920 (and endorsed in 1945) of an inter-State mechanism for judicial settlement of contentious cases, was made, as I have recalled, not by an intrinsic necessity, nor because it was the sole manner to proceed, but rather and only to give expression to the prevailing viewpoint amongst the members of the Advisory Committee of Jurists in charge of drafting the Statute of the PCIJ. Nevertheless, already at that time, some 90 years ago, International Law was not reduced to a purely inter-State 10

11

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, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2012, pp. 79–81, paras. 76–81. See Catherine M. Brölmann, “The Permanent Court of International Justice and International Rights of Groups and Individuals,” in Legacies of the Permanent Court of International Justice, ed. Christian J. Tams and Malgosia Fitzmaurice (Leiden: Nijhoff, 2013), 123–143.

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paradigm, and already knew of concrete experiments of access to international instances, in search of justice, on the part of not only States but also of individuals. The fact that the Advisory Committee of Jurists did not consider that the time was ripe for granting access, to the PCJI, to subjects of law other than the States (e.g., individuals) did not mean a definitive answer to the question. [. . .] Already in the travaux préparatoires of the Statute of the PCIJ, the minority position marked presence, of those who favoured the access to the old Hague Court not only of States, but also of other subjects of law, including individuals. This was not the position which prevailed, but the ideal already marked presence, in that epoch, almost one century ago.12 The inter-State mechanism of the PCIJ was regretted by those who, at the time, were seeking justice. A report prepared at the time of the occupation of the host State during World War II, for example, after referring, on the one hand, to the acts of intimidation, violence and persecution by the Nazi troops, and, on the other hand, to the diplomatic privileges and immunities of the personnel and the inviolability of the Peace Palace,13 added: À un certain nombre de personnes privées qui avaient réclamé l’intervention de la Cour a été donnée la réponse d’usage qu’aux termes de l’article 34 du Statut de la Cour seuls des États ont qualité pour se présenter devant elle.14 Those who most needed justice had no access to the Court, given the choice made at the time for a strict inter-State mechanism, in line with a dogma of that sombre epoch. Yet, the dogmatic position of the PCIJ Statute passed on to the ICJ Statute. Once again, the exclusively inter-State character of the contentieux before the ICJ has not appeared satisfactory at all. At least in some cases (see below), pertaining to the condition of individuals, the presence of the latter (or of their legal representatives), in order to submit, themselves, their claims, would have 12 13

14

Antônio Augusto Cançado Trindade, Os Tribunais Internacionais Contemporâneos (Brasília: FUNAG, 2013), 11–12. Jonkheer van Eysinga, Rapport—Gestion des affaires au siège de la Cour du 16.07.1940 jusqu’à la rentrée du Président et du Greffier, part I, La Haye, CPJI, 31 July 1945, pp. 1, 6, 9, 12, 25 and 32 [internal circulation only—from the historical archives of the PCIJ/ICJ]. Ibid., part II, p. 5.

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enriched the proceedings and facilitated the work of the Court. The artificiality of the exclusively inter-State outlook of the procedures before the ICJ has been disclosed by the very nature of some of the cases submitted to it. Such artificiality has been criticised, time and time again, in expert writing, which has recalled that “nowadays a very considerable part of international law” (e.g., law-making treaties) “directly affects individuals”, and the effect of Article 34, paragraph 1, of the ICJ Statute has been “to insulate” the Court “from this great body of modern international law”.15 The ICJ remains, in the words of a former President, “trapped by Article 34(1) in the notions about international law structure of the 1920s”.16 In the same line of thinking, Shabtai Rosenne warned, already in 1967, that there was “nothing inherent in the character of the International Court itself to justify the complete exclusion of the individual from appearing before the Court in judicial proceedings of direct concern to him”.17 The current practice of exclusion of the locus standi in judicio of the individuals concerned from the proceedings before the ICJ, in addition to being artificial, could also produce “incongruous results”.18 In a thoughtful International Symposium convened by the Max Planck Institute for Comparative Public Law and International Law in the early seventies, wherein the perceptions of judicial settlement of disputes were clearly disclosed, a lack of enthusiasm with judicial settlement was expressed by some participants,19 as—in the view of one of them—“States were moving further and further away from the rule of law as the basis of their behaviour”.20 The requirements of the rule of law, and of the unity of law, did not pass unnoticed; furthermore, the need for consistency in international case-law was

15

Robert Y. Jennings, “The International Court of Justice after Fifty Years,” American Journal of International Law 89 (1995): 504. 16 Ibid. 17 Shabtai Rosenne, “Reflections on the Position of the Individual in Inter-State Litigation in the International Court of Justice,” in International Arbitration—Liber Amicorum for M. Domke, ed. Pieter Sanders (The Hague: Nijhoff, 1967), 249, and see 242. 18 Ibid., at 250. And he added that “it is in the interests of the proper administration of international justice that in appropriate cases” the ICJ should “permit an individual directly concerned to present himself before the Court”, and to “give his own version of the facts and his own construction of the law”: ibid., and see 243. 19 See Max Planck Institute for Comparative Public Law and International Law, Judicial Settlement of International Disputes: International Court of Justice, Other Courts and Tribunals, Arbitration and Conciliation: an International Symposium (Berlin/Heidelberg: Springer, 1974), 165–167, 169–170 and 189. 20 Ibid., at 168.

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pointed out.21 Significantly, already at that time the need was acknowledged for the creation of other international tribunals, and the view was expressed that the dynamics of international relations had already long surpassed the anachronistic inter-State dimension (as by then evidenced by the rise and growth of international organizations).22 If we are to consider, in the centennial celebration of the Peace Palace (2013), the prospects for the future of international justice, we have also, and first, to look back in time, and grasp the lessons we can extract therefrom. The understanding that the corpus juris gentium applies to States and individuals alike is deeply-rooted in international law thinking, with roots going back, through the lessons of the ‘founding fathers’ of international law (like Francisco de Vitoria, Francisco Suárez and Hugo Grotius), to the classics upholding the recta ratio, such as the masterly De Officis by Cicero. The subsequent devising of the strictly inter-State dimension (in the late 19th and in the 20th centuries) represented an involution, with disastrous consequences. Fortunately, in the last decades, States themselves seem to have been acknowledging this, in lodging with the ICJ successive cases and matters which clearly transcend the inter-State level. And the Court has been lately responding, at the height of these new challenges and expectations, in taking into account, in its decisions, the situation not only of States, but also of peoples, of individuals or groups of individuals alike (see below). The gradual realisation—that we witness, and have the privilege to contribute to, nowadays—of the old ideal of justice at the international level23 has been revitalising itself, in recent years, with the reassuring creation and operation of the multiple contemporary international tribunals. This is a theme which has definitively assumed a prominent place in the international agenda of this second decade of the 21st century. Since the visionary ideas and early writings of some decades ago—of Bernard C.J. Loder, André Mandelstam, Nicolas Politis, Jean Spiropoulos, Alejandro Álvarez, Raul Fernandes, Édouard Descamps, Albert de La Pradelle, René Cassin, James Brown Scott, Georges Scelle, Max Huber, Hersch Lauterpacht, John Humphrey, among others24—it was necessary to wait for some decades for the current developments in the

21 22 23 24

Ibid., at 171, 173 and 187. Ibid., at 180 and 182. For a general study, see, e.g., Jean Allain, A Century of International Adjudication—The Rule of Law and Its Limits (The Hague: T.M.C. Asser Press, 2000), 1–186. Antônio Augusto Cançado Trindade, The Access of Individuals to International Justice (Oxford: Oxford University Press, 2011), 7–11.

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realisation of international justice to take place, not without difficulties,25 now enriching and enhancing international law.

The Expansion of International Jurisdiction

Nowadays, the international community fortunately counts on a wide range of international tribunals, adjudicating cases that take place not only at the interState level, but also at the intra-State level. This invites us to approach their work from the correct perspective of the justiciables themselves,26 and brings us closer to their common mission of securing the realisation of international justice, either at the inter-State or at the intra-State level. From the standpoint of the needs of protection of the justiciables, each international tribunal has its importance, in a wider framework encompassing the most distinct situations to be adjudicated, in each respective domain of operation.27 In a Colloquium organised to celebrate, in 1996, the 50th anniversary of the ICJ, critical views were expressed as to the traditional features of the interState mechanism of adjudication of contentious cases before the ICJ, which has kept on defying the passing of time. A couple of examples were evoked as illustrations, such as the settlement of disputes on environmental issues,28 requiring a wider range of participants in the procedure. One speaker recalled, e.g., the manifest inadequacy of that mechanism in the handling of the case of the Application of the 1902 Convention Governing the Guardianship of Infants (1958).29 There was also sharp criticism of the Court’s handling of the East 25

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See, e.g., Guillaume Fouda, “La justice internationale et le consentement des États,” in International Justice—Thesaurus Acroasium, vol. XXVI, ed. Kalliopi Koufa (Thessaloniki: Sakkoulas Publishers, 1997), 889–891, 896 and 900. Antônio Augusto Cançado Trindade, Évolution du droit international au droit des gens— L’accès des particuliers à la justice internationale: le regard d’un juge (Paris: Pedone, 2008), 1–187. See, to this effect, Antônio Augusto Cançado Trindade, “Contemporary International Tribunals: Their Continuing Jurisprudential Cross-Fertilization, with Special Attention to the International Safeguard of Human Rights,” The Global Community—Yearbook of International Law and Jurisprudence I (2012): 188. Malgosia Fitzmaurice, “Equipping the Court to Deal with Developing Areas of International Law: Environmental Law,” in Increasing the Effectiveness of the International Court of Justice, ed. Connie Peck and Roy S. Lee (The Hague: Nijhoff, 1997), 398–418. Shabtai Rosenne, “Lessons of the Past and Needs of the Future,” in Increasing the Effectiveness of the International Court of Justice, ed. Connie Peck and Roy S. Lee (The Hague: Nijhoff, 1997), 487–488, and see 466–492.

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Timor case (1995), where the East Timorese people had no locus standi to request intervention in the proceedings, not even to present an amicus curiae brief, although the crucial point under consideration was that of sovereignty over their territory. Worse still, the interests of a third State (which had not even accepted the Court’s jurisdiction) were taken for granted for the purpose of protection, and promptly safeguarded by the Court, at no cost to itself, by means of the application of the so-called Monetary Gold ‘principle’.30 Inconsistencies of the kind have survived the passing of the century, and have now reached the centennial celebration of the Peace Palace. The aforementioned examples are far from being the only ones. They in fact abound in the ICJ history. In respect of situations concerning individuals or groups of individuals, reference can further be made, e.g., to the Nottebohm case (1955) pertaining to double nationality; to the cases of the Trial of Pakistani Prisoners of War (1973), and of the Hostages (US Diplomatic and Consular Staff ) in Tehran (1980); to the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (1996 and 2007); to the case of the Frontier Dispute between Burkina Faso and Mali (1986); to the triad of cases concerning consular assistance—namely, the cases Breard (1998), LaGrand (Germany v. United States, 2001), and Avena and Others (Mexico v. United States, 2004). In respect of those cases, one cannot fail to reckon that one of their predominant elements was precisely the concrete situation of the individuals directly affected, and not merely abstract issues of exclusive interest to the litigating States in their relations inter se. Moreover, one may further recall that, in the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, 2000), the ICJ was concerned with grave violations of human rights and of international humanitarian law; and the Land and Maritime Boundary between Cameroon and Nigeria case (1996) was likewise concerned with the victims of armed clashes. More recently, examples wherein the Court’s concerns have had to go beyond the inter-State outlook have further increased in frequency. They include, e.g., the case on Questions relating to the Obligation to Prosecute or Extradite (2012) pertaining to the principle of universal jurisdiction under the UN Convention against Torture, the case of A.S. Diallo (Guinea v. Democratic Republic of the Congo, 2010) on detention and expulsion of a foreigner, the case of the Jurisdictional Immunities of the State (2012), the case of the Application of the International 30

Christine Chinkin, “Increasing the Use and Appeal of the Court,” in Increasing the Effectiveness of the International Court of Justice, ed. Connie Peck and Roy S. Lee (The Hague: Nijhoff, 1997), 47–48, 53 and 55–56.

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Convention on the Elimination of All Forms of Racial Discrimination (2011), and the case of the Temple of Preah Vihear (Interpretation) (provisional measures, 2011). The same can be said of the two last advisory opinions of the Court, on the Declaration of Independence in Respect of Kosovo (2010), and on a Judgment of the ILO Administrative Tribunal upon a Complaint Filed against the IFAD (2012), respectively. The artificiality of the exclusively inter-State outlook has thus been made often manifest, and increasingly so; that outlook rests on a longstanding dogma of the past, which has survived to date as a result of mental lethargy. Those more recent contentious cases, and requests for advisory opinions, lodged with the Court, have asked the latter, by reason of their subjectmatter, to overcome that outlook. Even if the mechanism of dispute-settlement by the ICJ remains strictly or exclusively inter-State, the substance of those disputes or issues brought before the Court pertains also to the human person, as the aforementioned cases and opinions clearly show. The truth is that the strictly inter-State outlook has an ideological content, is a product of its time, a time long past. In these more recent decisions (1999–2013), the ICJ has at times rightly endeavoured to overcome that outlook, so as to face the new challenges of our times, brought before it in the contentious cases and requests of advisory opinions it has been seized of. I shall come back to this point in my concluding observations.

International Human Rights Tribunals

The United Nations era has in effect been marked by the rise of multiple international tribunals. This is, in my perception, a reassuring phenomenon, which has filled a gap that persisted in the international legal order. It has contributed to the access to justice, at the international level. The international procedural capacity of individuals has been exercised before international human rights tribunals, thanks to the system of international individual petitions:31 the European Court of Human Rights, which celebrated its 60th anniversary in 2010, and the Inter-American Court of Human Rights, which celebrated its 30th anniversary in 2009, have more recently (in 2006) been followed by the African Court of Human and Peoples’ Rights. Individual applicants vindicate, before these Courts, rights which are inherent to them as human beings, also vis-à-vis their own State. The contribution of those international tribunals to the historical recovery of the position of the human person as subject of the law of nations (droit des gens) constitutes, in my understanding, the most important legacy of the 31

Antônio Augusto Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos (Bilbao: Universidad de Deusto, 2001), 34–35.

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international legal thinking of the last six decades.32 The mechanism of the ECtHR has already evolved into the conferment of jus standi to individuals directly before the Court; that of the IACtHR has reached the stage of conferring locus standi in judicio to individuals in all stages of the procedure before the Court; each one lives its own historical moment, and operates in it, within the framework of the universality of human rights. Another basic feature, and a remarkable contribution, of the work of the European and Inter-American Courts, is found in the position they both have firmly taken of setting limits to State voluntarism, thus safeguarding the integrity of the respective human rights conventions and the primacy of considerations of ordre public over the will of individual States. This is illustrated, e.g., by the European Court’s decisions in the cases of Belilos (1988), of Loizidou (preliminary objections, 1995), and of Ilaşcu, Leşco, Ivanţoc and Petrov-Popa (2001), as well as, e.g., by the Inter-American Court’s decisions in the cases of the Constitutional Court and of Ivcher Bronstein (jurisdiction, 1999), as well as of Hilaire, Benjamin and Constantine (preliminary objection, 2001). Both international tribunals have thus set higher standards of State behaviour and have established some degree of control over the interposition of undue restrictions by States; they have thereby reassuringly enhanced the position of individuals as subjects of international law, with full procedural capacity. By correctly resolving basic procedural issues raised in the aforementioned cases, both international tribunals have aptly made use of the techniques of public international law in order to strengthen their respective jurisdictions of protection of the human person, emancipated vis-à-vis her own State.33 International human rights tribunals have drawn attention to the position of centrality of the victims, the justiciables.

International Criminal Tribunals

Contemporary international criminal tribunals saw the light of day along the nineties, bearing in mind the post-World War II precedents of the Nuremberg 32

33

Cançado Trindade, Évolution du droit international au droit des gens, 1–187; Antônio Augusto Cançado Trindade, Le Droit international pour la personne humaine (Paris: Pedone, 2012), 45–368. Antônio Augusto Cançado Trindade, “The Trans-Atlantic Perspective: The Contribution of the Work of the International Human Rights Tribunals to the Development of Public International Law,” The European Convention on Human Rights at 50—Human Rights Information Bulletin 50 (Special Issue) (2000): 8–9; Antônio Augusto Cançado Trindade, “The Merits of Coordination of International Courts on Human Rights,” Journal of International Criminal Justice 2 (2004): 309–312.

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and the Tokyo Tribunals. Ad hoc international criminal tribunals (for the Former Yugoslavia and for Rwanda) were established (in 1993 and 1994), by decision of the UN Security Council in the light of Chapter VII of the UN Charter. They were followed by the permanent International Criminal Court (Rome Statute of 1998), and by the so-called ‘internationalised’ or ‘hybrid’ or mixed international tribunals (for Sierra Leone, East Timor, Kosovo, BosniaHerzegovina, Cambodia and Lebanon). Each of these tribunals has contributed, in its own way, to the determination of the accountability of those responsible for grave violations of human rights and of international humanitarian law. International criminal tribunals have thus filled a gap of classic international law. They afford yet another illustration of the rescue of the international legal personality (and responsibility) of individuals, but, ironically, first as passive subjects of international law (international criminal tribunals), and, only afterwards, as active subjects of international law (international human rights tribunals). Such developments, due to a reaction of the conscience of humankind against crimes against peace, crimes against humanity, grave violations of human rights and of international humanitarian law, give testimony of the expansion not only of international personality (and capacity), but also of international jurisdiction and of international responsibility. This is a notable feature of our times, in this present era of international tribunals. Their determination of responsibility—with all its legal consequences—has exercised a key role in the struggle against impunity. While international human rights tribunals determine the responsibility of States, inter­national criminal tribunals determine the responsibility of individuals. Anywhere in the world, it is reckoned nowadays that the perpetrators of grave violations of human rights (be they States or individuals), as well as those responsible for acts of genocide, war crimes and crimes against humanity, ought to respond judicially for the atrocities committed, irrespective of their nationality or the position held in the hierarchical scale of the public power of the State.

General Overview

Thanks to the work of those international tribunals, the international community no longer accepts impunity for international crimes, for grave violations of human rights and of international humanitarian law.34 The determination 34

Erik Møse, “Main Achievements of the ICTR,” Journal of International Criminal Justice 3 (2005): 932–933; Erik Møse, “The International Criminal Tribunal for Rwanda,” in International Criminal Justice—Law and Practice from the Rome Statute to Its Review, ed. Roberto Bellelli (Farnham: Ashgate, 2010), 90. And see also, likewise, Antonio Cassese,

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of the international criminal responsibility of individuals by those tribunals is a reaction of contemporary international law to grave violations, guided by fundamental principles, and values shared by the international community as a whole.35 There is no more room for impunity, with the present-day configuration of a true droit au Droit, of the persons victimised in any circumstances, including amidst the most complete adversity.36 International human rights tribunals as well as international criminal tribunals have operated decisively to put an end to impunity. Their jurisprudential advances in recent years were unforeseeable, and even unthinkable, some decades ago.37 International human rights tribunals have helped to awaken public conscience in respect of situations of utmost adversity or even defencelessness affecting individuals, and of widespread violence victimising vulnerable segments of the population.38 They have, in effect, brought justice to those victimised, even in situations of systematic and generalised violence, and mass atrocities. They have thus contributed, considerably and decisively, to the primacy of the rule of law at national and international levels, demonstrating that no one is above the law—neither the rulers, nor the ruled, nor the States themselves. International law applies directly to States, to international organizations, and to individuals.39

The Contribution of Expanded Advisory Jurisdiction

It was with the PCIJ that, for the first time, an international tribunal was attributed an advisory function—surrounded as it was by much discussion. It was originally conceived to assist the Assembly and the Council of the League of

35 36 37

38

39

“The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice,” Leiden Journal of International Law 25 (2012): 497. Salvatore Zappalà, La justice pénale internationale (Paris: Montchrestien, 2007), 15, 19, 23, 29, 31, 34–35, 43, 135, 137 and 145–146. Cançado Trindade, The Access of Individuals to International Justice, 196–198, and see 132–191. As to the growing importance currently devoted to the theme, see Yves Beigbeder, International Justice against Impunity—Progress and New Challenges (Leiden: Nijhoff, 2005), 1–235. See, as to the ECtHR, e.g., Michael D. Goldhaber, A People’s History of the European Court of Human Rights (New Brunswick/London: Rutgers University Press, 2009), 2, 11, 57, 123, 126–127, 149–151, 155–158 and 168; and, as to the IACtHR, e.g., Antônio Augusto Cançado Trindade, “Die Entwicklung des interamerikanischen Systems zum Schutz der Menschenrechte,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 70 (2010): 629–699. Cançado Trindade, Os Tribunais Internacionais Contemporâneos, 109–110.

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Nations. The PCIJ, making good use of it, ended up by assisting not only those organs, but States as well: among the 27 advisory opinions it delivered, 17 of them addressed aspects of disputes between States. It thus contributed to the avoidance of full-blown contentious proceedings, and exercised a preventive function, to the benefit of the judicial settlement of international disputes.40 The advisory function, as exercised by the PCIJ, contributed also to the progressive development of international law. Ever since, the advisory jurisdiction has expanded. While the PCIJ Statute enabled only the League Council and Assembly to request advisory opinions, the UN Charter, together with the ICJ Statute, enabled other United Nations organs (besides the General Assembly, the Security Council and ECOSOC) and specialised agencies to do so, and the ICJ has issued 26 advisory opinions to date. Other contemporary international tribunals have been endowed with advisory jurisdiction, and there are examples of frequent use made of it, such as the advisory jurisprudential construction of the Inter-American Court of Human Rights. Advisory opinions of the ICJ, on their part, can also contribute, and have indeed done so, to the prevalence of the rule of law at national and international levels. Some of them have, likewise, contributed to the progressive development of international law (e.g., the ones on Reparation for Injuries, 1949; on Namibia, 1971; on Immunity from Legal Process of a Special Rapporteur of the UN Commission on Human Rights, 1999; among others). The same can be said of some of the advisory opinions of the IACtHR (e.g., the ones on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, 1999; on the Juridical Condition and Human Rights of the Child, 2002; on the Juridical Condition and Rights of Undocumented Migrants, 2003).

The Move towards Compulsory Jurisdiction

It is not my intention to dwell upon the bases of jurisdiction of contemporary international tribunals, as I have already done so in detail elsewhere,41 and 40

41

Marika G. Samson and Douglas Guilfoyle, “The Permanent Court of International Justice and the ‘Invention’ of International Advisory Jurisdiction,” in Legacies of the Permanent Court of International Justice, ed. Christian J. Tams and Malgosia Fitzmaurice (Leiden: Nijhoff, 2013), 41–45, 47, 55–57 and 63. Antônio Augusto Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law—Part I,”

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recently in my lengthy dissenting opinion in the ICJ’s judgment (of 1 April 2011) on the case of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination;42 but I cannot refrain from recalling, in this centennial celebration, the difficulties experienced in the long path towards compulsory jurisdiction. Throughout the last decades, advances could here have been much greater if State practice had not undermined or betrayed the purpose which originally inspired the creation of the mechanism of the optional clause of compulsory jurisdiction (of the PCIJ and the ICJ), that is, the submission of political interests to law, rather than the acceptance of compulsory jurisdiction the way one freely wishes. Only in this way would one, as originally envisaged, achieve greater development in the realisation of justice at the international level on the basis of compulsory jurisdiction. The foundation of compulsory jurisdiction lies, ultimately, in the confidence in the rule of law at the international level.43 The very nature of a court of justice (beyond traditional arbitration) calls for compulsory jurisdiction.44 Conscience stands above the will. Soon renewed hopes to that effect were expressed in compromissory clauses enshrined in multilateral and bilateral treaties.45 These hopes have grown in recent years, with the increasing recourse to compromissory clauses as basis of jurisdiction.46 In any case, the ICJ retains at least the power and

42

43 44

45 46

in XXXVII Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano—2010 (Washington, D.C.: OAS General Secretariat, 2011), 233–259; Antônio Augusto Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law—Part II,” in XXXVIII Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano—2011 (Washington, D.C.: OAS General Secretariat, 2012), 285–366. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, Dissenting Opinion of Judge Cançado Trindade, ICJ Reports 2011, pp. 239–322, paras. 1–214. See, in this sense, C. Wilfred Jenks, The Prospects of International Adjudication (London: Stevens, 1964), 101, 117, 757, 762 and 770. See, in this sense, Bernard C.J. Loder, “The Permanent Court of International Justice and Compulsory Jurisdiction,” British Year Book of International Law 2 (1921–1922): 11–12. And see, earlier on, likewise, Nicolas Politis, La justice internationale (Paris: Hachette, 1924), 7–255, esp. 193–194 and 249–250. Edvard Hambro, “Some Observations on the Compulsory Jurisdiction of the International Court of Justice,” British Year Book of International Law 25 (1948): 153. See Renata Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Dordrecht: Nijhoff, 1993), 4, 31–32, 83 and 86; Ram P. Anand, “Enhancing the Acceptability of Compulsory Procedures of International Dispute Settlement,” Max Planck Yearbook of United Nations Law 5 (2001): 5–7, 11, 15 and 19.

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duty to address motu proprio the issue of jurisdiction.47 The time has come to overcome definitively the regrettable lack of automatism of the international jurisdiction, which, despite all difficulties, is no longer an academic dream or utopia, but has become reality in respect of some international tribunals. I pointed this out in my General Course on Public International Law delivered at the Hague Academy of International Law in 2005, wherein, inter alia, I reviewed the developments in the domain of peaceful settlement of international disputes well beyond State voluntarism, and keeping in mind the general concerns of the international community.48 More recently, I have reiterated that [i]nternational jurisdiction is becoming, in our days, an imperative of the contemporary international legal order itself, and compulsory jurisdiction responds to a need of the international community in our days; although this latter has not yet been fully achieved, some advances have been made in the last decades.49 The Court of Justice of the European Communities provides one example of supranational compulsory jurisdiction, though limited to community law or the law of integration. The European Convention on Human Rights, after the entry into force of Protocol n. 11 on 01.11.1998, affords another conspicuous example of automatic compulsory jurisdiction. The International Criminal Court is the most recent example in this regard; although other means were contemplated throughout the travaux préparatoires of the 1998 Rome Statute (such as cumbersome ‘opting in’ and ‘opting out’ procedures), at the end compulsory jurisdiction prevailed, with no need for further expression of consent on the part of States Parties to the Rome Statute. This was a significant decision, enhancing international jurisdiction. The system of the 1982 U.N. Convention on the Law of the Sea, in its own way, moves beyond the traditional regime of the optional clause of the ICJ 47 48

49

Ruth C. Lawson, “The Problem of the Compulsory Jurisdiction of the World Court,” American Journal of International Law 46 (1952): 234 and 238, and see 219, 224 and 227. Antônio Augusto Cançado Trindade, “International Law for Humankind: Towards a New Jus Gentium—General Course on Public International Law—Part II,” Recueil des Cours de l’Académie de Droit International de la Haye 317 (2005): 173–245 (chapters XXIV–XXV). Heinhard Steiger, “Plaidoyer pour une juridiction internationale obligatoire,” in Theory of International Law at the Threshold of the 21st Century—Essays in Honour of Krzysztof Skubiszewski, ed. Jerzy Makarczyk (The Hague: Kluwer, 1996), 818, 821–822 and 832; and see Ronald St. John MacDonald, “The New Canadian Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice,” Canadian Yearbook of International Law 8 (1970): 21, 33 and 37 [footnote in the original].

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Statute. It allows States Parties to the Convention the option between the International Tribunal for the Law of the Sea, or the ICJ, or else arbitration (Article 287); despite the exclusion of certain matters, the Convention succeeds in establishing a compulsory procedure containing coercive elements; the specified choice of procedures at least secures law-abiding settlement of disputes under the U.N. Law of the Sea Convention.50 In addition to the advances already achieved to this effect, reference could also be made to recent endeavours in the same sense. These illustrations suffice to disclose that compulsory jurisdiction is already a reality,—at least in some circumscribed domains of International Law, as indicated above. International compulsory jurisdiction is, by all means, a juridical possibility. If it has not yet been attained on a world-wide level, in the inter-State contentieux, this cannot be attributed to an absence of juridical viability, but rather to misperceptions of its role, or simply to a lack of conscience as to the need to widen its scope. Compulsory jurisdiction is a manifestation of the recognition that International Law, more than voluntary, is indeed necessary.51, 52

Emerging Conceptions of the Exercise of the International Judicial Function

With the operation of international tribunals, there have gradually emerged two basic distinct conceptions of the exercise of the international judicial 50

51

52

Lucius Caflisch, “Cent ans de règlement pacifique des différends interétatiques,” Recueil des Cours de l’Académie de Droit International de La Haye 288 (2001): 365–366 and 448–449; Jean Allain, “The Future of International Dispute Resolution—The Continued Evolution of International Adjudication,” in Looking Ahead: International Law in the 21st Century (Proceedings of the 29th Annual Conference of the Canadian Council of International Law, Ottawa, October 2000) (The Hague: Kluwer, 2002), 61–62 [footnote in the original]. One such example is found in the Proposals for a Draft Protocol to the American Convention on Human Rights, which I prepared as rapporteur of the IACtHR, which inter alia advocates an amendment to Article 62 of the American Convention so as to render the jurisdiction of the IACtHR in contentious matters automatically compulsory upon ratification of the Convention. See Antônio Augusto Cançado Trindade, Informe: Bases para un Proyecto de Protocolo a la Convención Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Protección, vol. II, 2nd edition (San José of Costa Rica: InterAmerican Court of Human Rights, 2003), 1–64 [footnote in the original]. Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law—Part II,” 310–311.

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function: one—a strict one—whereby the tribunal has to limit itself to settle the dispute at issue and to handle its resolution of it to the contending parties (a form of transactional justice), addressing only what the parties had put before it; the other, a larger one—the one I sustain—whereby the tribunal has to go beyond that, and say what the law is ( juris dictio), thus contributing to the settlement of other like situations as well, and to the progressive development of international law. In the interpretation itself—or even in the search— of the applicable law, there is space for judicial creativity; each international tribunal is free to find the applicable law, independently of the arguments of the contending parties ( jura novit curia).53 Furthermore, there are circumstances wherein the judgments of international tribunals may have repercussions beyond the States parties to a case— as exemplified by the well-known judgments of the IACtHR (having as leading case that of Barrios Altos, 2001), which held amnesties leading to impunity to be incompatible with the American Convention on Human Rights.54 Such repercussions tend to occur when the judgments succeed to give expression to the idea of an objective justice. In this way, they contribute to the evolution of international law itself, and to the rule of law at national and international levels in democratic societies. The more international tribunals devote themselves to explaining clearly the foundations of their decisions, the greater their contribution to justice and peace is bound to be. This issue has attracted the attention of juridical circles in the last decades.55 In my conception, in judgments of international tribunals (also at the regional level, in addition to national tribunals as well), the motifs and the dispositif go together: one cannot separate the decision itself from its foundations, from the reasoning which upholds it. Reason and persuasion permeate the operation of justice, and this goes back to the historical origins of its conception.

53

54

55

See Mauro Cappelletti, Juízes Legisladores? (Porto Alegre: S.A. Fabris, 1993), 73–75 and 128–129; Manley O. Hudson, International Tribunals—Past and Future (Washington, D.C.: Carnegie Endowment for International Peace/Brookings Institution, 1944), 104–105. For an account, see Antônio Augusto Cançado Trindade, El Ejercicio de la Función Judicial Internacional—Memorias de la Corte Interamericana de Derechos Humanos, 3rd edition (Belo Horizonte: Del Rey, 2013), 267–268. See, e.g., La Sentenza in Europa—Metodo, Tecnica e Stile (Padua: CEDAM, 1988), 101–126, 217–229 and 529–542.

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The Relevance of General Principles of Law

General principles of law, enlisted among the formal sources of international law (Article 38 of the ICJ Statute), encompass those found in all national legal systems56(thus ineluctably linked with the very foundations of law), and likewise the general principles of international law.57 Such principles, in my own conception, inform and conform the norms and rules of international law, being a manifestation of the universal juridical conscience; in the jus gentium in evolution, basic considerations of humanity play a role of the utmost importance.58 The aforementioned general principles of law have always marked presence in the search for justice, despite the distinct perceptions of this latter in distinct countries. International human rights tribunals and international criminal tribunals have ascribed great importance to such general principles of law.59 Those principles have been reaffirmed time and time again, and retain full validity in our days. Legal positivism has always attempted, in vain, to minimise their role, but the truth is that, without those principles, there is no legal system at all, be it national or international. They give expression to the idea of an objective justice, paving the way for the application of the universal international law, the new jus gentium of our times.60

56

57

58 59

60

See Hermann Mosler, “To What Extent Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law within the Meaning of Article 38(1)(c) of the Statute of the International Court of Justice,” in International Law and the Grotian Heritage: A Commemorative Colloquium Held at The Hague on 8 April 1983 on the Occasion of the Fourth Century of the Birth of Hugo Grotius (The Hague: T.M.C. Asser Instituut, 1985), 173–185. It is not surprising that the heralds of absolute sovereignty of the past have resisted the applicability of the general principles of law at the international level: Fabián O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Leiden: Nijhoff, 2008), 59 and 41. Antônio Augusto Cançado Trindade, International Law for Humankind—Towards a New Jus Gentium, 2nd revised edition (Leiden/The Hague: Nijhoff, 2013), 1–726. To this effect, see, e.g., Katarzyna Grabarczyk, Les principes généraux dans la jurisprudence de la Cour Européenne des Droits de l’Homme (Aix-Marseille: Presses Universitaires d’AixMarseille, 2008), 375–473; Mohamed Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal—A Judge’s Recollection (Oxford: Oxford University Press, 2012), 55, 57, 86, 88–89, 185 and 203. Cançado Trindade, International Law for Humankind—Towards a New Jus Gentium, 1–726.

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I have had the occasion to ponder, for example, in my concurring opinion in the ground-breaking advisory opinion no. 18, of 17 September 2003, of the IACtHR, on the Juridical Condition and Rights of Undocumented Migrants: Every legal system has fundamental principles, which inspire, inform and conform their norms. It is the principles (derived etymologically from the Latin principium) that, evoking the first causes, sources or origins of the norms and rules, confer cohesion, coherence and legitimacy upon the legal norms and the legal system as a whole. It is the general principles of law (prima principia) which confer to the legal order (both national and international) its ineluctable axiological dimension; it is they that reveal the values which inspire the whole legal order and which, ultimately, provide its foundations themselves. This is how I conceive the presence and the position of the principles in any legal order, and their role in the conceptual universe of Law. (. . .) From the prima principia the norms and rules emanate, which in them find their meaning. The principles are thus present in the origins of Law itself. The principles show us the legitimate ends to seek: the common good (of all human beings, and not of an abstract collectivity), the realization of justice (at both national and international levels), the necessary primacy of law over force, the preservation of peace. (. . .) [I]f there are no principles, nor is there truly a legal system. Without the principles, the ‘legal order’ simply is not accomplished, and ceases to exist as such”.61 An international tribunal like the ICJ has resorted to general principles of law (recognised in domestic legal systems and in international law) in its jurisprudence constante. For their part, international human rights tribunals have always kept in mind the principle of the dignity of the human person, as well as the principle (pro victima) of the application of the norm most favourable to the victim. And international criminal tribunals have kept in mind the principle of humanity, as well as the principle of universal jurisdiction; and one may add, in respect of the ICC, the principle of complementarity (enshrined in its Statute)—to refer to some examples. From this outlook, the basic posture of an international tribunal can only be principiste, without making undue concessions to State voluntarism. I had the occasion of pointing this out, as guest speaker, in the opening of the judicial 61

Inter-American Court of Human Rights, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion of 17 September 2003, Series A, No. 18, Concurring Opinion of Judge Cançado Trindade, paras. 44 and 46.

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year of the ECtHR, on 22 January 2004, at the Palais des Droits de l’Homme in Strasbourg, in the following terms: La Cour européenne et la Cour interaméricaine ont toutes deux, à juste titre, imposé des limites au volontarisme étatique, protégé l’intégrité de leurs Conventions respectives des droits de l’homme, ainsi que la prépondérance des considérations d’ordre public face à la volonté de tel ou tel État, élevé les exigences relatives au comportement de l’État, instauré un certain contrôle sur l’imposition de restrictions excessives par les États, et, de façon rassurante, mis en valeur le statut des individus en tant que sujets du Droit International des Droits de l’Homme en les dotant de la pleine capacité sur le plan procédural”.62 More recently, within the ICJ, I have likewise sustained the same position. For example, in my lengthy separate opinion in the ICJ’s advisory opinion (of 22 July 2010) on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, I singled out, inter alia, the relevance of the principles of international law in the framework of the law of the United Nations, and in relation with the human ends of the State, leading also to the overcoming of the strictly inter-State paradigm in contemporary international law.63 Subsequently, in my extensive dissenting opinion in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), I sustained the pressing need of the realisation of justice on the basis of the compromissory clause (Article 22) of the CERD, discarding any yielding to State voluntarism.64

62

63

64

“Discours de Antônio Augusto Cançado Trindade, Président de la Cour Interaméricaine des Droits de l’Homme,” in Cour Européenne des Droits de l’Homme, Rapport annuel 2003 (Strasbourg: CourEDH, 2004), 41–50; see also Antônio Augusto Cançado Trindade, El Desarrollo del Derecho Internacional de los Derechos Humanos mediante el Funcionamiento y la Jurisprudencia de la Corte Europea y la Corte Interamericana de Derechos Humanos (San José de Costa Rica/Strasbourg: CtIADH, 2007), 41–42, para. 13. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2010, pp. 594–607, paras. 177–211. Judgment, Dissenting Opinion of Judge Cançado Trindade, ICJ Reports 2011, pp. 239–322, paras. 1–214.

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The Awareness of the Primacy of the Jus Necessarium Over the Jus Voluntarium

As already seen, in the present era of international tribunals there have been advances towards compulsory international jurisdiction, seeking to secure the primacy of the jus necessarium over the jus voluntarium. The present-day phenomenon of the multiplicity of international tribunals is indeed related to the move towards international compulsory jurisdiction.65 As to the ICJ, the original purpose of the optional clause (Article 36, paragraph 2, of the Statute) was to attract general acceptance so as to establish compulsory international jurisdiction, in the light of the principle of juridical equality of States; the subsequent practice of adding restrictions—at each State’s free will—to the acceptance of the optional clause distorted the purpose originally propounded. But there is today renewed hope in the growing use of compromissory clauses, as jurisdictional basis in the contentieux before the ICJ; for their consideration one is, in my view, to take into account the respective conventions as a whole (including their object and purpose), in the path towards international compulsory jurisdiction. The International Tribunal for the Law of the Sea counts on a sui generis mechanism, opening four alternatives for dispute settlement: if there is no agreement as to which one to select, arbitration applies. This provides another illustration that State discretion is not unlimited as in times past. The Court of Justice of the European Communities (now the European Union) provides yet another illustration of the move towards international compulsory jurisdiction, in the domain of regional or subregional integration, a domain in which there is a multiplicity of international tribunals nowadays (e.g., in Latin America and in Africa). An international tribunal such as the European Court of Justice has contributed considerably to the consolidation of the autonomous nature of Community law, to its effectiveness, to the specificity of Community treaties, and to the identification of the essential characteristics of the Community legal order66 (such as its primacy over the law of member States, and the direct 65

66

See Hervé Ascensio, “La notion de juridiction internationale en question,” in La juridictionnalisation du droit international (Paris: Pedone, 2003), 192–194; Edward McWhinney, Judicial Settlement of International Disputes—Jurisdiction, Justiciability and Judicial LawMaking of the Contemporary International Court (Dordrecht: Nijhoff, 1991), 13. See, e.g., Paul J.G. Kapteyn, “The Role of the Court of Justice in the Development of the Community Legal Order”, in Il Ruolo del Giudice Internazionale nell’Evoluzione del Diritto Internazionale e Comunitario—Atti del Convegno di Studi in Memoria di G. Morelli, ed. Francesco Salerno (Padua: CEDAM, 1995), 161–162, 165–167 and 170–173. And see, recently,

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effect of several of its provisions, applicable alike to persons and to member States themselves).

International Tribunals and Jurisprudential Cross-Fertilisation

In our days, the more lucid international legal doctrine has at last discarded empty euphemistic expressions used some years ago—such as so-called ‘proliferation’ of international tribunals, so-called ‘fragmentation’ of international law, so-called ‘forum-shopping’—which diverted attention to false issues of delimitation of competences, oblivious of the need to focus attention rather on the imperative of an enlarged access to justice. Those expressions, narrowminded and inelegant and derogatory, and devoid of any meaning, paid a disservice to our discipline; they missed the key point of the considerable advances of the old ideal of international justice in the contemporary world. It has become clear today that contemporary international tribunals, rather than threatening the cohesion of international law, enrich and strengthen it, in asserting its aptitude to resolve disputes in distinct domains of international law, at both inter-State and intra-State levels. Contemporary international law has thereby become more responsive to the fulfilment of the basic needs of the international community, of human beings and of humankind as a whole, amongst which that of the realisation of justice. The expansion of international jurisdiction through the establishment of contemporary international tribunals is but a reflection of the way contemporary international law has evolved, no longer indifferent to human suffering, and of the current search for, and construction of, a corpus juris for the international community guided by the rule of law in democratic societies and committed to the realisation of justice. In the performance of their common mission of imparting justice, contemporary international tribunals have begun to take into account each other’s case-law. The case-law of the ICJ, for example, has been regularly taken into account by other contemporary international tribunals. In addition, recently, the ICJ itself has also displayed its openness of mind and has begun to do the same, as disclosed by its judgment (merits, of 30 November 2010) in the case of A.S. Diallo.67 For the first time in its history, the ICJ established therein violations of the two human rights treaties at issue together, namely, at the

67

e.g., Armin von Bogdandy, I Principi Fondamentali dell’Unione Europea—Un Contributo allo Sviluppo del Costituzionalismo Europeo (Naples: Editoriale Scientifica, 2011), 63–137. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, p. 639.

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universal level, the 1966 UN Covenant on Civil and Political Rights, and, at the regional level, the 1981 African Charter on Human and Peoples’ Rights— both in the framework of the universality of human rights—in addition to the established breach of the 1963 Vienna Convention on Consular Relations (Article 36, paragraph 1(b)). Also in an unprecedented way, the ICJ made express cross-references to the relevant case-law of the IACtHR and ECtHR; and again, in its subsequent judgment (compensation, of 19 June 2012) in the same case of A.S. Diallo, has referred to the pertinent case-law of other international tribunals, such as, e.g., the ECtHR and IACtHR, the ITLOS, and the Iran-United States Claims Tribunal.68 Likewise, the handling of the Lubanga case (2007–2012) by the International Criminal Court has been marked, from the start, by the attention dispensed by the ICC to the relevant case-law of international human rights tribunals;69 when it came to its treatment of specific issues concerning reparations, the ICC (Trial Chamber I) has, to an even far greater extent, made express cross-references to the relevant case-law of the IACtHR in particular. Like other contemporary international tribunals, the ITLOS has also contributed to jurisprudential cross-fertilisation. Thus, recently (judgment of 14 March 2012), in the case of the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, the ITLOS has made several cross-references to decisions of the ICJ in distinct cases of maritime delimitation.70 Earlier on, in its first advisory opinion (of 1 February 2011), on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area,71 the ITLOS Seabed Disputes Chamber has referred to other decisions of the ICJ, in particular to its judgment (of 20 April 2010) in the case of the Pulp Mills on the River Uruguay,72 as well as to the ICJ advisory opinion (of 22 July 2010) on the Declaration of Independence in Respect of Kosovo.73 68 69 70

71

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Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, ICJ Reports 2012, p. 324. The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06; Pre-Trial Chamber I decision of 29 January 2007; Trial Chamber I decision of 14 March 2012. Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Case No. 16, Judgment of 14 March 2012, paras. 90, 95, 117, 185, 191, 211, 229–230, 233, 264, 294–295 and 330. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), ITLOS Case No. 17, Advisory Opinion of 1 February 2011, paras. 57 and 169. Ibid., paras. 57, 111, 115, 135, 147 and 149. Ibid., paras. 39 and 60.

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Jurisprudential cross-fertilisation, furthermore, exerts a constructive function in the safeguard of the rights of the justiciables. It is thus to be expected that contemporary international tribunals remain increasingly aware of the case-law of each other, in their continuing performance of their common mission of imparting justice in distinct domains of international law,74 thus preserving its basic unity. This is to the benefit of the international community as a whole, and of all the justiciables, all subjects of law around the world— States, international organizations and individuals alike.

Effects of the Work of International Tribunals

In the present era of multiple international tribunals, the effects of their joint work can already be perceived. These effects have been, in my perception, first, their law-making endeavours, not only applying but also creating an objective law, beyond the will or consent of individual States, on the basis of the consciousness of human values; secondly, the acknowledgment of the fundamental importance of general principles of law;75 thirdly, the development of international legal procedure (with a blend of traditions of national legal systems around the world, and the acknowledgment of the importance for the justiciables of the holding of oral hearings); fourthly, the fostering of the unity of law, with the interactions between international law and domestic law; and fifthly, the aforementioned fostering of respect for the rule of law at national and international levels. The assertion of an objective law (first point), beyond the will of individual States, is a revival of jusnaturalist thinking. Judicial settlement of international disputes is needed as a guarantee against unilateral interpretation by a State of conventional obligations. After all, the basic foundations of international law emanate ultimately from the human conscience, from the universal juridical conscience, and not from the ‘will’ of individual States.76 The assertion of 74

75

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Cançado Trindade, “Contemporary International Tribunals,” 188. And see, in general, e.g., Giuseppe de Vergottini and Jean-Jacques Pardini, Au-delà du dialogue entre les Cours (Paris: Dalloz, 2013), 39–138. Antônio Augusto Cançado Trindade, “Foundations of International Law: The Role and Importance of Its Basic Principles,” in XXX Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano—2003 (Washington, D.C.: OAS General Secretariat, 2004), 359–415. Marcel M.T.A. Brus, Third Party Dispute Settlement in an Interdependent World (Dordrecht: Nijhoff, 1995), 142 and 182–183; Antônio Augusto Cançado Trindade, “La Recta Ratio dans

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the unity of the law is intertwined with the rule of law at national and international levels, as access to justice takes place, and ought to be preserved, at both levels.77 The ICJ itself, despite its anachronistic inter-State mechanism of operation, has been attentive to developments in the domains of the international law of human rights78 and of international humanitarian law.79 In this respect, it should not pass unnoticed that distinct trends of protection of the justiciables (international law of human rights, international humanitarian law, inter­ national law of refugees, international criminal law) converge, rather than conflict with each other, at normative, hermeneutic and operative levels.80

Interactions between International and Domestic Law: The Unity of the Law

The work of international human rights tribunals, as well as of contemporary international criminal tribunals (see above), bears witness of the interactions between international and domestic law in their respective domains of operation. The realisation of justice becomes a common goal, and a converging one, at the domestic and international legal orders. They both testify to the unity of the law in the realisation of justice, a sign of our times. International human rights tribunals have shown that, in the great majority of cases lodged with them, international jurisdiction is resorted to when there is no longer a possibility to find justice at the domestic law level. The realisation of justice

77 78

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les Fondements du Jus Gentium comme Droit International de l’Humanité,” Revista do Instituto Brasileiro de Direitos Humanos 10 (2010): 11–26. Cançado Trindade, Os Tribunais Internacionais Contemporâneos, 80–82. See, e.g., Antônio Augusto Cançado Trindade, “La jurisprudence de la Cour Internationale de Justice sur les droits intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights,” in Droits intangibles et états d’exception / Non-Derogable Rights and States of Emergency, ed. Daniel Premont, Christian Stenersen and Isabelle Oseredczuk (Brussels: Bruylant, 1996), 53–71 and 73–89. See, e.g., Gentian Zyberi, The Humanitarian Face of the International Court of Justice (Utrecht: Intersentia, 2008), 26–60 and 259–341. See Antônio Augusto Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional (Buenos Aires: Ad-Hoc, 2013), 7–185; Antônio Augusto Cançado Trindade, Derecho Internacional de los Derechos Humanos, Derecho Internacional de los Refugiados y Derecho Internacional Humanitario—Aproximaciones y Convergencias (Geneva: ICRC, 2000), 1–66.

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becomes a common and converging goal of the international and national legal orders, bearing witness of the unity of the law. There have been occasions wherein the international jurisdiction has come to support national jurisdiction (see below), so as to secure also within this latter the primacy of law (prééminence du droit, rule of law). In effect, the above-mentioned expansion of international jurisdiction has counted on the co-participation of national jurisdictions.81 After all, international law attributes international functions also to national tribunals.82 These latter have a role to play also in the search of the primacy of the international rule of law (prééminence du droit).83 Among international criminal tribunals, the ICC shows, inter alia, that the principle of complementarity, for example, signals the call for a greater approximation, if not interaction, between the international and national jurisdictions. And it could not be otherwise, particularly in our times, when, with growing frequency, the most diverse matters are brought before judicial control at the international level.84 Contrary to what keeps on being assumed in various legal circles, national and international jurisdictions, in our times, are not concurring or conflicting, but rather complementary, in constant interaction in the protection of the rights of the human person and in the struggle against the impunity of the violators of those rights. It is not certain either—also contrary to what is usually assumed—that the international jurisdiction for the protection of the rights of the human person 81

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See, in general, e.g., Yuval Shany, Regulating Jurisdictional Relations between National and International Courts (Oxford: Oxford University Press, 2009), 1–200. For an account of the relations between the Prosecutors’ offices of the ad hoc International Tribunals for the Former Yugoslavia and for Rwanda and the competent national authorities, see Victor Peskin, International Justice in Rwanda and the Balkans—Virtual Trials and the Struggle for State Cooperation (Cambridge, Cambridge University Press, 2009), 3–257. See Antônio Augusto Cançado Trindade, Reflexiones sobre la Interacción entre el Derecho Internacional y el Derecho Interno en la Protección de los Derechos Humanos (Guatemala: Ed. del Procurador de los Derechos Humanos de Guatemala, 1995), 3–41; Cançado Trindade, The Access of Individuals to International Justice, 76–112 (on the interaction between international law and domestic law in human rights protection). Andreas Nollkaemper, National Courts and the International Rule of Law (Oxford: Oxford University Press, 2011), 1–304. Tim Koopmans, “Judicialization,” in Une communauté de droit—Festschrift für G.C. Rodríguez Iglesias, ed. Ninon Colneric et al. (Berlin: Berliner Wissenschafts-Verlag, 2003), 51–57; Geir Ulfstein, “The International Judiciary,” in The Constitutionalization of International Law, ed. Jan Klabbers, Anne Peters and Geir Ulfstein (Oxford: Oxford University Press, 2011), 126–152.

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is always and only ‘subsidiary’ to national jurisdiction, or ‘autonomous’ in relation to it. The two jurisdictions interact in the present domain of protection. And, further than that, there are significant illustrations, in certain situations of extreme adversity to human beings, of the international jurisdiction having even preceded national jurisdiction in the protection of the rights of the victimised and in the reparations due to them. For example, the determination, by the IACtHR, of the international responsibility of the respondent State for grave violations of human rights in the cases of the massacres of Barrios Altos and La Cantuta (judgments of 200185 and 2006,86 respectively), preceded the condemnation, by the Special Penal Chamber of the Peruvian Supreme Court (in 2007–2010), of the former President of the Republic (Alberto Fujimori).87 In those two cases, in addition to the paradigmatic case of the Constitutional Court (IACtHR’s judgment of 2001)—pertaining to the destitution of three magistrates, later reincorporated into the Court—, the international jurisdiction effectively intervened in defence of the national one, decisively contributing to the restoration of the État de Droit—as it occurred—besides having safeguarded the rights of the victimised.88 In the history of the relations—and interactions—between national and international jurisdictions, this trilogy of cases will surely keep on being studied by the present and future generations of internationalists and constitutionalists. 85

86 87

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Inter-American Court of Human Rights, Case of Barrios Altos v. Peru, Judgment of 14 March 2001 (Merits), Series C No. 75; Judgment of 3 September 2001 (Interpretation), Series C No. 83; and Judgment of 30 November 2001 (Reparations and Costs), Series C No. 87. Inter-American Court of Human Rights, Case of La Cantuta v. Peru, Judgment of 29 November 2006 (Merits, Reparations and Costs), Series C No. 162. For a historical account, see Cançado Trindade, El Ejercicio de la Función Judicial Internacional, 42–45; Cançado Trindade, Os Tribunais Internacionais Contemporâneos, 84–90. Almost three years after the IACtHR’s judgment (of 31 January 2001) in the case of the Constitutional Court, I sent a letter to this latter (on 4 December 2003), as then President of the IACtHR, in which I expressed inter alia that “we can appreciate this Judgment of the IACtHR in historical perspective [. . .], as a landmark one not only [. . .] [in the] interAmerican system of protection of human rights. [. . .] [It] constitutes an unprecedented judicial decision also at world level. It has had repercussions not only in our region but also in other continents. It has marked a starting point of a remarkable and reassuring approximation between the judicial power at national and international levels [. . .]”. The text of the letter is reproduced in OAS, Informe Anual de la Corte Interamericana de Derechos Humanos—2003 (San José of Costa Rica: IACtHR, 2004), 1459–1460, and see 1457–1458.

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Concluding Remarks: The Tasks Ahead, and Prospects for the Future

I have now come to my concluding observations, as to the prospects for the future, keeping in mind the lessons learned along a century of experience sedimented in the domain of international justice. It is high time, in my view, to begin focusing attention constantly on the proper ways of achieving the realisation of justice, rather than keeping cultivating strategies of litigation for the sake of it, making abstraction of human values. Likewise, it is high time to accompany consistently the on-going expansion of international jurisdiction, and of international legal personality and capacity, as well as international responsibility, by drawing closer attention to all subjects of international law, not only States, but also international organizations, peoples and individuals. In the last three years, the ICJ has given signs of its preparedness to do so. Thus, in its order on provisional measures of protection of 18 July 2011, in the case of the Temple of Preah Vihear (Interpretation), the ICJ, in deciding inter alia to order the establishment of a provisional demilitarised zone around the Temple (part of the world’s cultural and spiritual heritage) and its vicinity, extended protection (as I pointed out in my separate opinion)89 not only to the territory at issue, but also to the local inhabitants, in conformity with the principle of humanity in the framework of the new jus gentium of our times.90 Territory and people go together. Subsequently, in the recent case of the Frontier Dispute (judgment of 16 April 2013), the contending parties (Burkina Faso and Niger) themselves expressed before the Court their concern, in particular with regard to local nomadic and semi-nomadic populations, and assured that their living conditions would not be affected by the tracing of the frontier. Once again, as I pointed out in my separate opinion,91 the principle of humanity permeated the handling of the case by the ICJ. In the aforementioned A.S. Diallo case (judgment on compensation, of 19 June 2012),92 the ultimate beneficiary of the reparation ordered by the ICJ was, in my perception, the individual concerned, rather than his State of 89

Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand ), Provisional Measures, Order of 18 July 2011, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2011, pp. 588–606, paras. 66–113 90 Ibid., pp. 606–607, paras. 114–117. 91 Frontier Dispute (Burkina Faso/Niger), Judgment of 16 April 2013, Separate Opinion of Judge Cançado Trindade, paras. 90, 99 and 104–105. 92 Judgment, ICJ Reports 2012, p. 324.

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nationality. On another recent occasion, the application by the ICJ of the principle of universal jurisdiction under the 1984 UN Convention against Torture in the case of Questions relating to the Obligation to Prosecute or Extradite (judgment of 20 July 2012), has a bearing, in my understanding, on restorative justice (the realisation of justice itself) for the numerous victims of the Habré regime (1982–1990) in Chad, as I pointed out in my lengthy separate opinion.93 Moving to another point, it is now time to accompany the expansion of international jurisdiction, also by fostering the dialogue and co-ordination between contemporary international tribunals. Endeavours of co-ordination already exist, but have been far from sufficient to date. There is nowadays pressing need for greater dialogue and co-ordination of contemporary international tribunals, in their common mission of imparting justice. Such dialogue would enable them, e.g., to assess more precisely to what extent they have enhanced the positive obligations of States to combat grave violations of international law. At the conceptual level, there is pressing need of further jurisprudential developments in the matter of reparation, as well as provisional measures of protection, both still in their infancy. I have recently pointed this out, as to reparation, in my separate opinion in the case of A.S. Diallo (ICJ judgment on compensation of 19 June 2012). The jurisprudential construction of the IACtHR in respect of distinct forms of reparation is surely deserving close attention from other international tribunals. The matter discloses the relevance of the rehabilitation of victims. And as to provisional measures of protection, I have made the same point, recently, in my dissenting opinion in the joined cases of Certain Activities Carried out by Nicaragua in the Border Area and of Construction of a Road in Costa Rica along the San Juan River (order of 16 July 2013), where I stressed the need to contribute to the conformation of an autonomous legal regime of those measures, beyond the traditional inter-State dimension, in the proper exercise of the international judicial function.94 Likewise, the issue of compliance with judgments and decisions of international tribunals requires far greater attention and study on the part of international tribunals—some of them being already engaged in its careful consideration currently. Here, each international tribunal counts on a mecha93

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Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2012, pp. 554–558, paras. 169–184. Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), joined with Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Requests for the modification of the Order of 8 March 2011 indicating provisional measures, Order of 16 July 2013, Dissenting Opinion of Judge Cançado Trindade.

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nism of its own; yet, all of them are susceptible of improvement. May it here be recalled that, some years ago, the ECtHR, in the case Hornsby v. Greece (judgment of 19 March 1997), stressed the relevance of the execution of judgments for the effectiveness itself of the right of access to a tribunal under Article 6, paragraph 1, of the European Convention on Human Rights. The ECtHR warned that “that right would be illusory” if the domestic legal system of the State concerned “allowed a final, binding judicial decision to remain inoperative to the detriment of one party”. And it added: It would be inconceivable that Article 6(1) should describe in detail procedural guarantees afforded to litigants—proceedings that are fair, public and expeditious—without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention.95 This issue pertains, as pointed out by the ECtHR, to the rule of law itself, so as to secure “the proper administration of justice”.96 Thus, not only formal access, but also the guarantees of the due process of law, and the due compliance with the judgment, integrate the right of access to justice lato sensu.97 In the same line of thinking, the IACtHR, in its judgment (on competence, of 28 November 2003) in the case of Baena Ricardo and Others (270 Workers) v. Panama, stated that The jurisdiction comprises the faculty to impart justice; it is not limited to declaring the law, but also comprises the supervision of compliance with the judgment [. . .], [which is] one of the elements which integrate the jurisdiction. [. . .] Compliance [. . .] is the materialization of justice for the concrete case [. . .]. The effectiveness of the Judgments depends on compliance with them, [. . .] [which is] closely linked with the right of

95 96 97

European Court of Human Rights, Hornsby v. Greece, Judgment of 19 March 1997, ECtHR Reports 1997-II, no. 33, para. 40. Ibid., para. 41. On the matter, see Antônio Augusto Cançado Trindade, El Derecho de Acceso a la Justicia en Su Amplia Dimensión, 2nd edition (Santiago de Chile: CECOH/Librotecnia, 2012), 79–574.

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access to justice, [. . .] set forth in Articles 8 (judicial guarantees) and 25 (judicial protection) of the American Convention.98 Only with the due compliance with the judgments the proclaimed rights are effectively protected; the execution of judgments, added the IACtHR lucidly, “ought to be considered an integral part of the right of access to justice” lato sensu. If the responsible State does not execute at the domestic law level the measures of reparation ordered by the Court, “it would be denying the right of access to international justice”.99 Despite all the experience accumulated so far, this remains an open issue, which—may I insist on this point—is still in its infancy, like those of reparation and of provisional measures of protection (see above). It is to be hoped that the on-going reflections within some international tribunals on how to improve their respective mechanisms in this respect prove fruitful. The issue does not exhaust itself at the international level. It is highly desirable that, parallel to the distinct mechanisms for the supervision of compliance with judgments of contemporary international tribunals, States adopt procedures of domestic law to secure, on a permanent basis, the faithful compliance with the judgments of international tribunals, thus avoiding casuistic solutions. After all, such faithful compliance with, or execution of, their judgments is a legitimate concern of all contemporary international tribunals. Such compliance ought to be integral, rather than partial or selective. This is a position of principle, in relation to an issue which pertains to the international ordre public, and to the rule of law (prééminence du droit) at international and national levels. In sum, the present era of international tribunals has brought about remarkable advances, and the expansion of international jurisdiction has been accompanied by the considerable increase in the number of the justiciables that are granted access to justice, in distinct domains of international law, and in the most diverse situations, including in circumstances of the utmost adversity, and even defencelessness. Yet, there remains a long way to go.

98 99

Inter-American Court of Human Rights, Case of Baena Ricardo et al. (270 Workers) v. Panama, Judgment of 28 November 2003 (Competence), Series C No. 104, paras. 72–74. Ibid., paras. 82–83.

chapter 2

Between the Quest for Universality and its Limited Jurisdiction: The Role of the International Court of Justice in Enhancing the International Rule of Law Andreas Zimmermann Introduction In the “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels” adopted on 24 September 2012,1 member States of the United Nations recognize[d] the positive contribution of the International Court of Justice, the principal judicial organ of the United Nations, including in adjudicating disputes among States, and the value of its work for the promotion of the rule of law. At the same time the General Assembly once again “call[ed] upon States that have not yet done so to consider accepting the jurisdiction of the International Court of Justice in accordance with its Statute”.2 It is against this background that this essay intends to address not so much the Court’s role in fostering and developing substantive international law,3 but rather the challenges and

* Professor at the University of Potsdam; Director of the Potsdam Centre of Human Rights; Member of the Permanent Court of Arbitration. 1 UN Doc. A/RES/67/1; see inter alia generally on the matter Charles Majinge, “The United Nations and the Future of the Rule of Law,” Journal of African and International Law 3 (2010): 457; Stéphanie Vig, “The Conflictual Promises of the United Nations’ Rule of Law Agenda: Challenges for Post-Conflict Societies,” Journal of International Peacekeeping 13 (2009): 131. 2 UN Doc. A/RES/67/1, para. 31. 3 But see on this already the seminal work by Hersch Lauterpacht, The Development of International Law by the International Court (London et al.: Stevens, 1958), as well as, most recently, the various contributions in Christian J. Tams and James Sloan, The Development of International Law by the International Court of Justice (Oxford: Oxford University Press, 2013).

© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004278561_�03

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inherent limitations which are related to the seizing of the Court4 mainly when it comes to contentious proceedings, and taking into account the role of the Court as the principal judicial organ of the United Nations5 and its universal character.

Universality of the Court

When the Peace Palace was opened in 1913,6 only approximately two-thirds of all States that then existed had acceded to either the 1899 or the 1907 Convention for the Pacific Settlement of International Disputes.7 100 years later, all member States of the United Nations are ipso facto contracting parties to the Court’s Statute and may thus appear as parties before the Court.8 With the quasi-universality of the membership of the United Nations, access to the Court has thus become almost universal in nature. As a consequence, outside somewhat curious settings,9 Article 35, paragraph 2, of the Court’s Statute has

4 On the notion and the various forms of seizing the Court see Christian Tomuschat, “Article 36,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 660. 5 On the notion and relevance of the Court being the principal judicial organ of the organization see Karin Oellers-Frahm, “Article 92 UN Charter,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 171–174. 6 On the Peace Palace see inter alia Arthur Eyffinger, The Peace Palace: Residence For Justice, Domicile Of Learning (The Hague: Carnegie Foundation, 1988). 7 As to the structure and main contents of the Hague Conventions see Christian J. Tams, “Die Zweite Haager Konferenz und das Recht der friedlichen Streitbeilegung,” Die Friedens-Warte 4 (2007): 119; for a current list of contracting parties to the two Hague Conventions see http:// www.pca-cpa.org/showpage.asp?pag_id=1038 (accessed February 20, 2014). 8 As to States which are not members of the United Nations becoming contracting parties to the Court’s Statute under Article 93, para. 2, of the UN Charter see Karin Oellers-Frahm, “Article 93 UN Charter,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 183–184. 9 On the saga of ‘Yugoslavia’ appearing as a party before the Court and the final irrelevance of Article 35, para. 2, of the Court’s Statute see, among others, Vojin Dimitrijević and Marko Milanović, “The Strange Story of the Bosnian Genocide Case,” Leiden Journal of International Law 21 (2008): 65.

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lost almost all of its practical relevance.10 This appears to be even more true since the Court has rightly interpreted the ‘treaties-in-force’-clause in said provision restrictively so as to cover pre-Statute treaties only.11 Yet, while access is universal, it is only the first step towards the universal exercise of the Court’s judicial function. To state the obvious, it seems to be axiomatic, as evidenced by the Court’s jurisprudence ever since its creation, that the consent of the parties to a dispute, to be expressed in one way or another, to submit to the Court’s jurisdiction constitutes an additional condicio sine qua non for the Court to be able to exercise its judicial function in a given contentious case.12 Indeed, already in 1907 the question of a system of truly compulsory arbitration was addressed at the Second Hague Peace Conference and was rejected, even though it had then, in principle, been favoured by a majority

10

11 12

For further details see Andreas Zimmermann, “Article 35,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 620–623. Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, ICJ Reports 2004, p. 324. See, e.g., as to the unequivocal PCIJ/ ICJ position on the matter The Mavrommatis Palestine Concessions, Judgment of 30 August 1924, PCIJ, Series A, No. 2, p. 16; Rights of Minorities in Upper Silesia (Minority Schools), Judgment of 26 April 1928, PCIJ, Series A, No. 15, p. 22; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion (First Phase), ICJ Reports 1950, p. 71; Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, ICJ Reports 1952, p. 103; Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, Judgment, ICJ Reports 1954, p. 32; Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment, ICJ Reports 1959, p. 142; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 431, para. 88; Merits, Judgment, ICJ Reports 1986, p. 32, para. 44; Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, p. 260, para. 53; East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 101, para. 26; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Preliminary Objections, Judgment, ICJ Reports 1998, p. 324, para. 116; Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 132, para. 20; 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, ICJ Reports 2002, p. 241, para. 57; for further details see Tomuschat, “Article 36,” 647.

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of delegations.13 The very same question came up again when the Statute of the PCIJ was drafted14 and resurfaced in 1945.15 And one cannot but speculate what would have happened to the international legal system, and what would have happened to the role of the present Court, had the drafters of the Court’s Statute either in 1920 or in 1946, opted for a system of truly compulsory jurisdiction. Indeed, under the Charter, and given the specific provision of the Chapter VI-based Article 36, paragraph 3, of the UN Charter as lex specialis, even the Security Council may not endow the Court with jurisdiction in a given case without the consent of the parties, not even when acting under Chapter VII. This result was, at least implicitly, confirmed by the Court in its 2000 judgment in the Aerial Incident case between Pakistan and India where the Court, after specifically quoting Article 36, paragraph 3, of the Charter, found that “the United Nations Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court”.16 Thus, the universality of the Court depends on the States’ willingness—and, in the case of its advisory jurisdiction, that of the political organs of the United Nations—, as the Court’s clients, to have recourse to the Court. On the whole, the Court’s record is quite impressive in that regard: ever since 1946 94 States, and thus approximately half of the current United Nations membership, have participated either as parties or as interveners in contentious proceedings, while 112 States and two other entities, the statehood of which is doubtful, have actively taken part in advisory proceedings.17 Having thus briefly considered more general issues related to the universality of the Court, one has to examine the crucial factors in increasing the chances of seizing the Court in a given situation—which factors could then lead to a growing role of the Court in enhancing the rule of law in the international system.

13

14 15 16 17

Jost Delbrück, “Internationale Gerichtsbarkeit—Zur Geschichte ihrer Entstehung und der Haltung Deutschlands,” in Deutschland und die internationale Gerichtsbarkeit, ed. Andreas Zimmermann (Berlin: Duncker and Humblot, 2004), 23–24. Tomuschat, “Article 36,” 638. Ibid., at 639. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, ICJ Reports 2000, p. 32, para. 48. See the overview on the Court’s website, http://www.icj-cij.org/docket/index.php?p1=3 (accessed February 20, 2014).

Quest for Universality and Limited Jurisdiction



Incentives and Barriers for Seizing the Court



Political Background

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Despite the fact that the 1982 General Assembly “Manila Declaration on the Peaceful Settlement of International Disputes”18 provides that a “referral to the International Court of Justice should not be considered an unfriendly act between States”, any such referral continues to constitute a major political step. On the whole, it is thus mainly political factors that decide whether, in a given situation, a State brings a case against another State, weighing the possible positive and negative effects of such a move, even where the case is eventually won. One might therefore hope that the international community, acting through the Security Council, would, in specific situations, make more use of its recommendatory powers under Article 36, paragraph 3, of the UN Charter,19 or that the General Assembly or regional organizations provide a State considering recourse to the Court in a given case with some other form of political backing in its endeavour for a judicial settlement by the Court. Costs One should also not, at least when it comes to least developed and very small States, underestimate the relevance of the costs of litigation before the Court, which might eventually even force them not to hire external counsel, especially where proceedings extend over several years. It is therefore to be welcome that the international community, in 2004, decided to broaden the terms of reference of the “Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes Through the International Court of Justice” so that the fund also becomes available where the Court’s jurisdiction, while being based on either Article 36, paragraph 2, of the ICJ Statute or on a compromissory clause rather than a compromis, is uncontested, or during the merits phase of a case where the Court’s jurisdiction had originally been challenged, but where the Court has already determined that is has jurisdiction.20 18 19

20

UNGA Res. A/37/590. On the practice of the Security Council so far on the matter see Thomas Giegerich, “Article 36 UN Charter,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 158. See generally Peter Bekker, “International Legal Aid in Practice: the ICJ Trust Fund,” American Journal of International Law 87 (1993): 659; as well as Carlos Espósito, “Article 64,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 1598.

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Having thus considered the external incentives and disincentives of bringing a case, as a subsequent question it will be necessary to analyse some of the legal barriers for doing so, the Court’s consent-based jurisdiction being the most obvious hurdle.

Jurisdictional Questions

At the starting point on jurisdictional questions, Article 36, paragraph 2, of the Court’s Statute will be considered. Article 36, paragraph 2, of the ICJ Statute Only 70 out of 194 UN members States have, so far at least, made declarations under Article 36, paragraph 2, of the Court’s Statute.21 This amounts to approximately only one-third of the general membership of the United Nations, even if this number has slightly increased in recent years, individual terminations of such declarations from time to time notwithstanding.22 At the same time, however, the sophistication, number and breadth of reservations to such declarations have in recent years further increased. Only 11 States currently have declarations in force under Article 36, paragraph 2, which do not contain any reservations.23 This in turn has led to the effect that the Court and counsel not infrequently have to spend significant time and energy in addressing these problems instead of focusing on problems of the merits of the case, while only a judgment on the merits alone obviously is able to lead to a settlement of the dispute as such. What is more is that at least some States have excluded issues related to the use of force from the ambit of their declarations.24 While a qualified 21 22

23 24

For a current list of such declarations see the Court’s website at http://www.icj-cij.org/ jurisdiction/index.php?p1=5&p2=1&p3=3&lang=en (accessed February 20, 2014). See, e.g., the termination by Colombia of 5 December 2001, the text of which reads: “I have the honour to inform you on behalf of the Government of the Republic of Colombia that its acceptance of the compulsory jurisdiction of the Permanent Court of International Justice, as formulated in its declaration of 30 October 1937, and therefore of the International Court of Justice, is terminated with effect from the date of this notification. The Government of the Republic of Colombia intends to transmit in due course a new declaration accepting the jurisdiction of the International Court of Justice, the formulation of which is to be determined.” See http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&lang=en (accessed February 20, 2014). See, e.g., Germany’s 2008 declaration in that regard, which excludes “any dispute which (a) relates to, arises from or is connected with the deployment of armed forces abroad, involvement in such deployments or decisions thereon, or (b) relates to, arises from or is

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declaration is certainly better than no declaration at all, this type of declaration has the problematic effect of excluding litigation about a rule that forms the bedrock of international law. On the other hand, the former practice of inserting self-judging reservations into such declarations, whose compatibility with Article 36, paragraph 6, of the ICJ Statute has always been doubtful,25 seems to have de facto fallen into desuetudo. At the same time, States, in reacting to the Court’s jurisprudence ever since its 1984 Nicaragua judgment,26 now tend to expressly provide in most of their declarations that they may terminate them with immediate effect,27 which somewhat undermines the character of Article 36, paragraph 2, of the ICJ Statute as creating a network of bilateral engagements, and of these declarations as constituting ‘standing offers’ to other States to also make such declarations. Should the case arise, it would follow from the logic of the Court’s Nicaragua jurisprudence that in a case brought by a State having reserved its right to terminate its declaration at will against a State whose declaration does not contain such a clause, the respondent State could not invoke the principle of reciprocity. Such approach, however, constitutes an even further incentive for all other States to also insert in their declarations made under Article 36, paragraph 2, of the ICJ Statute termination-at-will clauses so as to provide for reciprocity. Yet, such a tendency towards a generalisation of termination-atwill clauses in turn runs the danger of further weakening the system of compulsory jurisdiction underlying Article 36, paragraph 2. Apart from the just-mentioned Article 36, paragraph 2, declarations and general multilateral dispute settlement treaties providing for the Court’s jurisdiction, such as the European Convention for the Peaceful Settlement of Disputes or the Pact of Bogotá, treaty-specific compromissory clauses constitute a third, increasingly important pillar of the Court’s jurisdiction. The complexities of the latter have however only relatively recently fully surfaced in the Court’s jurisprudence.

connected with the use for military purposes of the territory of the Federal Republic of Germany, including its airspace, as well as maritime areas subject to German sovereign rights and jurisdiction”; text available at http://www.icj-cij.org/jurisdiction/index .php?p1=5&p2=1&p3=3&code=DE (accessed February 20, 2014). 25 See most recently Robyn Briese and Stephan Schill, “Djibouti v France—Self-Judging Clauses before the International Court of Justice,” Melbourne Journal of International Law 10 (2009): 308. 26 Judgment, ICJ Reports 1984, pp. 419–421, paras. 61–65. 27 For examples of such declarations see the list of declarations made under Article 36, para. 2, of the Court’s Statute, available at http://www.icj-cij.org/jurisdiction/index .php?p1=5&p2=1&p3=3&lang=en (accessed February 20, 2014).

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Compromissory Clauses Compromissory Clauses versus Optional Dispute Settlement Clauses The first issue concerning such compromissory clauses relates to the question as to whether a treaty-related compromissory clause should be included in the treaty as such, as is the case e.g. in the United Nations Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment,28 or whether the Court’s treaty-specific jurisdiction should rather be provided for in a separate instrument, as in the case of the Vienna Convention on Consular Relations and its Optional Protocol. In the latter case, as confirmed by State practice with regard to the just mentioned Consular Relations Convention, contracting parties may decide to withdraw from such an optional protocol after one or more cases have been submitted to the Court under it.29 In contrast thereto, with regard to compromissory clauses stricto sensu, a reservation may obviously be only made ab initio, leaving a State which wants to withdraw from the Court’s jurisdiction on that matter with the only choice of either denouncing the treaty in toto or not taking any action at all. The denunciation of a treaty at large is however, at least politically speaking, more costly than the sole denunciation of an optional protocol on dispute settlement. Moreover, a full-fledged denunciation might even be legally impossible where the respective treaty containing a compromissory clause does not, by the same token, also contain a denunciation clause, as is, e.g., the case with regard to the 2006 United Nations Convention for the Protection of All Persons from Enforced Disappearance, which contains a compromissory clause, yet no denunciation clause. The Compromissory Clause as the ‘Eye of a Needle’ The second issue relates to the effects ratione materiae of a specific case being brought solely on the basis of a compromissory clause rather than on the basis of Article 36, paragraph 2. Depending on the scope of the clause and the specificities of the case, such a limited jurisdictional basis might force the applicant State to squeeze the facts through the eye of a needle, and thereby to frame its application with a focus on one particular treaty only. By the same token, the Court might be forced to eventually even disregard certain aspects which, to 28 29

See Article 30 thereof. On 7 March 2005, the UN Secretary-General received from the Government of the United States of America a communication which notified that the Government of the United States of America withdraws from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes as a reaction to the Court’s judgment in the Avena case.

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refer to a formula used by the Court in a somewhat different context, form the real cause of the dispute. It thus seems laudable that the Court has attempted to circumvent these issues by, inter alia, laying a focus on the question what the specific dispute is truly all about, and eventually even denying that it has jurisdiction in the first place under a given compromissory clause where such clause is solely relied upon to ‘construe’ an otherwise inexistent dispute.30

Restrictive Compromissory Clauses and the Danger of Hardening the Dispute A third issue relates to the overall dispute-settlement function of the Court. Obviously, only a limited number of treaties contain compromissory clauses providing for the Court’s jurisdiction. As mentioned, in order to be able to claim jurisdiction, the applicant State needs to claim specifically a violation of that very treaty which might involve the gravest and most serious violations of international law, while other, more obvious violations of international law are then, for purposes of the proceedings before the Court, given its limited treaty-based jurisdiction, simply irrelevant. To give but one example, in the context of armed conflicts, no treaty exists that would specifically provide for the Court’s jurisdiction as to alleged violations of international humanitarian law, or concerning crimes against humanity or relating to the resort to military force. In contrast thereto, the Convention on the Prevention and Punishment of the Crime of Genocide provides for the Court’s jurisdiction under its Article IX. In such a scenario, the scheme underlying the Court’s jurisdiction forces the applicant, in order to establish the Court’s jurisdiction, to present its case as one relating to genocide. This in turn might further poison the relationship between the parties in an already difficult situation of armed conflict. It is thus such cases, where the Court’s jurisdiction is limited, that, instead of providing for, or at least furthering, a peaceful settlement of disputes, might instead lead to a significant hardening of the positions of the parties. Besides, the Court might be put in an awkward position. In such a scenario claims based on the treaty containing the compromissory clause might not have been substantiated. The Court accordingly would have to eventually decide the case in favour of the respondent. At the same time other violations of international law might have occurred, which are however beyond the 30

See for such a proposition the Court’s approach to its jurisdiction in the case brought by Georgia against the Russian Federation in 2008: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011, p. 70.

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purview of the Court for lack of a relevant compromissory clause. And this might lead to a result that might be hard, if not impossible, to explain beyond the walls of the Great Hall of Justice. Reservations to Compromissory Clauses The fourth and last observation as to compromissory clauses relates to reservations to such clauses. While the record of ratifications of major treaties containing compromissory clauses is indeed impressive, two factors suggest a more cautious assessment. First, there is a relatively high number of reservations to these very compromissory clauses. Besides, there are, second, by and large, few reactions by other contracting parties to such kind of reservations. In that regard, it is certainly positive that the Court has, though only step by step, taken a somewhat more nuanced approach as to the permissibility of such reservations and, indeed, also as to its own role in that regard. As a matter of fact, it is telling that the Court still had, in 1999, in cases brought by the then Federal Republic of Yugoslavia against Spain and the United States respectively,31 simply taken note of the lack of any objection by the applicant State when the relevant reservation to Article IX of the Genocide Convention had been lodged. This stands in contrast to the case brought by the DRC against Rwanda, where the situation was mutatis mutandis identical, i.e. where the DRC had not objected to Rwanda’s Article IX reservation either. The Court there, only seven years later, analysed the compatibility of such reservation with the object and purpose of the treaty. What is more, the Court, while stressing the fact that the said reservation merely had a bearing on the jurisdiction of the Court, and did thus not affect substantive obligations relating to the Genocide Convention, still was careful in stating that it was only “[i]n the circumstances of the present case” that the Court could not find such reservation to be incompatible with the object and purpose of the Convention.32 E contrario, as five members of the bench had noted already in 2006, even a reservation to a specific ‘procedural’ provision in a certain convention could be contrary to the treaty’s object and purpose, and it is thus no longer self-evident that a reservation to Article IX 31

32

See, e.g., Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 924, paras. 24–25; Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 772, paras. 32–33. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p. 32, para. 67.

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of the Genocide Convention, or parallel reservations with regard to similar compromissory clauses, could not eventually be regarded as incompatible with the object and purpose of the respective treaty. This in turn, however, leads to the ensuing question of the effects of the impermissibility of a reservation. The ILC, in its guidelines on the matter, at least as a matter of principle, considers the State having made an impermissible reservation as a full-fledged contracting State without the benefit of the reservation. Such result, if the Court were to follow the ILC’s approach, would raise a significant problem. Under the ILC guidelines, the author of an invalid reservation “may express at any time its intention not to be bound by the treaty without the benefit of the reservation”.33 One wonders whether this approach by the ILC, providing a State with the freedom to set aside ex post facto the Court’s jurisdiction under a compromissory clause which is subject to its reservation, is indeed compatible with the Court’s judicial function, and in particular the principle underlying Article 36, paragraph 6, of the Court’s Statute. In any case, the Court should not shy away from scrutinising reservations to compromissory clauses as such, and the circumstances in which they have been made, and, in particular, should not shy away from such an approach due to more or less hidden threats to withdraw eventually from the respective treaty, should the Court find such reservations to be impermissible.

Issues of Standing

Having examined issues of jurisdiction as possible barriers to the seizing of the Court, in a further step the issue of standing ought to be considered, where recently a very positive development could be observed, increasing the probability that cases may be successfully brought before the Court. 47 years after its 1966 judgment in South West Africa (Second Phase)34 and 43 after its famous obiter dictum in Barcelona Traction,35 in Belgium v. Senegal the Court has now confirmed the possibility for non-injured States, also before the Court, to invoke the responsibility of contracting parties to treaties containing

33

34 35

ILC, Guide to Practice on Reservations to Treaties, available at http://legal.un.org/ilc/ texts/instruments/english/draft%20articles/1_8_2011.pdf (accessed February 20, 2014) (emphasis added). South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ Reports 1966, p. 6. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Reports 1970, p. 32, para. 33.

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obligations erga omnes partes.36 Given the relative large number of treaties containing obligations of such a character and, at the same time, containing compromissory clauses, Belgium v. Senegal has thus significantly broadened the possibility of seizing the Court with a whole category of cases, namely in the field of human rights. This in turn might enable the Court, over time, also further to refine its position as to the relevance of, and its relationship with, other supervisory mechanisms in the field of human rights, and namely human rights treaty bodies where, from this author’s point of view, the Court, at least so far, has somewhat approached the matter ‘à la tête du client’.37 Besides, the Whaling case38 might have provided the Court with the opportunity to clarify whether, with regard to global environmental treaties, mutatis mutandis, the same considerations apply. Indeed, in said case, Australia did not claim to be an injured State but rather, drawing upon Belgium v. Senegal,39 argued that “all States parties to that Convention have a common interest in each State complying with its obligations under the Convention”40—and thus have standing to bring a case before the Court. Yet the Court did not expressis verbis address the matter in its judgment in the Whaling case. Rather it seems to have simply taken it for granted that the Whaling Convention embodies obligations erga omnes partes providing each and every contracting party with standing. Whether other States will follow the trend towards the invocation of ‘community concerns’ in ICJ proceedings remains to be seen. Clearly, such cases raise difficult issues not only of standing, but also of the availability of remedies, of coordination between different treaty parties sharing an interest in treaty compliance, and, as mentioned, of the relationship between the Court and treaty mechanisms. In any case, and to state the obvious, the fact that obligations possess an erga omnes character, just like the peremptory character of obligations that flow from jus cogens norms, does not absolve the Court from finding that it has jurisdiction at the first place, which remains one of the main, if not the main, barrier to the seizing of the Court. But, as it enters its 36

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, pp. 449–450, paras. 68–70. 37 As to the interrelationship between the Court’s exercise of jurisdiction and the prior seizing of treaty bodies see Andreas Zimmermann, “Human Rights Treaty Bodies and the Jurisdiction of the International Court of Justice,” The Law and Practice of International Courts and Tribunals 12 (2013): 5. 38 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014. 39 Judgment, ICJ Reports 2012, pp. 449–450, paras. 68–70. 40 CR 2013/18, p. 33, para. 19 (Boisson de Chazournes).

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10th decade, the World Court can still play an important role in the clarification and strengthening of provisions protecting interests of the international community at large.

Concluding Remarks

There continues to exist an inherent conflict between the Court’s envisaged universal role as the principal judicial organ of the United Nations on the one hand, and the Court’s inherently limited jurisdiction on the other. As long as the very concept of State consent remains at the core of the Court’s jurisdiction, it is in the hands of States—and in theirs alone—to decide whether, and to what extent, the Court may truly, and increasingly, play the role of a gentle civiliser of nations—a role already envisaged 100 years ago for international courts and tribunals when the Peace Palace was inaugurated.

chapter 3

Cooperation and Competition between the International Court of Justice and the Security Council Chehrazad Krari-Lahya Introduction The International Court of Justice is meant to interact with other United Nations bodies, especially the Security Council. The latter may, in accordance with Article 96, paragraph 1, of the UN Charter, request an advisory opinion from the ICJ. It has done so only once, in 1970.1 The Security Council may also provide support in the implementation of the Court’s judgments upon the request of a party.2 Under Article 94, paragraph 2, of the UN Charter, it may make recommendations or impose particular measures on the parties. However, it cannot be said that the Security Council exercises its powers in order to support the Court’s functions. It rather has recourse to the Court in order to legitimise its own activities.3 Besides the two procedures mentioned above, the UN Charter provides the possibility for the Security Council to recommend that States refer their disputes to the ICJ. Article 36, paragraph 3, of the Charter provides that

* Research and Teaching Fellow at the University of Paris I (Panthéon-Sorbonne). 1 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16. 2 In UNSC Res. 819 (1993) of 16 April 1993, the Security Council took note of the provisional measures indicated by the ICJ in its order of 8 April 1993 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)). The Security Council also promoted the respect of the ICJ judgment in the territorial dispute between Libya and Chad in 1994. See UNSC Res. 915 (1994) of 4 May 1994, which led to the establishment of the United Nations Aouzou Strip Observer Group. 3 Philippe Weckel, “Les suites des décisions de la Cour internationale de Justice,” Annuaire Français de Droit International 42 (1996): 442–443.

© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004278561_�04

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[i]n making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. This article reflects the idea that the ICJ can have an important role in the peaceful settlement of international disputes. In practice, although one may find some implicit references to this article,4 the Security Council has explicitly recommended that a dispute be referred to the Court only once, in the Corfu Channel case, through a resolution of 9 April 1947. This led to the ICJ judgment of 9 April 1949. The Security Council never explicitly recommended again that States submit their dispute specifically to the ICJ. Later, it only invited States to use ‘preventive mechanisms’ to settle their disputes, while discreetly mentioning the ICJ.5 The nuance is important. There is a great difference between a general invitation, which is more in the nature of a suggestion, and a specific recommendation,6 which could be a real incentive. The Security Council has also sometimes prompted States parties to a dispute to resort to the ICJ through informal actions, without adopting any recommendation.7 However, such examples are rare and even hard to ascertain, as there may be no written evidence. The Security Council could contribute to increasing the wider confidence in the Court by applying Article 36, paragraph 3, instead of letting it sink into oblivion. The first reason that might explain the infrequent recourse to Article 36, paragraph 3, is the propensity of States to resort to negotiations rather than to a judicial settlement of their disputes. As the ICJ itself has recognised,

4 Repertory of Practice of United Nations Organs, Supplements nos. 7–9 (1985–1999), vol. III, paras. 1, 3 and 4. 5 UNSC Res. 395 (1976), para. 4, and UNSC Res. 1366 (2001), para. 10. 6 Giovanni Distefano and Etienne Henry, “The International Court of Justice and the Security Council: Disentangling Themis from Ares,” in The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case, ed. Karine Bannelier, Theodore Christakis, and Sarah Heathcote (London: Routledge, 2012), 68. 7 In the dispute between Cameroon and Nigeria in 1994, after some informal and friendly discussions with certain Security Council members (France and the United Kingdom), the parties finally decided to submit their dispute to the World Court. See the intervention of Ambassador Yáñez-Barnuevo at the ICJ Conference on “The ICJ in the Service of Peace and Justice,” September 23, 2013, available at http://www.icj-cij.org/ (accessed February 20, 2014).

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negotiations are “the most appropriate method” for the settlement of many disputes.8 Sir Gerald Fitzmaurice rightly observed that apart from the natural reluctance to litigate felt by almost everyone, governments prefer to deal with disputes by political means rather than by submission to adjudication, and fight shy of the commitment involved by going to law: they dislike the loss of control that is entailed over the future of the case, the outcome of which they can no longer influence politically once it is before a court of law, since this will then depend upon legal considerations with which they do not find themselves at home. They much prefer a political forum such as the United Nations in which leverage can be exercised through the influence of majorities.9 The Security Council would then have no need to recommend to the parties the referral of their dispute to the ICJ—as Article 36, paragraph 3, provides— considering that the Council could prompt diplomatic negotiations to reach a solution without resorting to adjudication. The reluctance of the Security Council to apply Article 36, paragraph 3, expressly also shows its wish not to share the responsibility for the maintenance of international peace and security. By taking care of all disputes, including the legal ones, the Security Council indirectly contributes to keeping low the number of cases that could be submitted to the Court. This is not the principal reason for the rarity of cases submitted to the Court. However, the Security Council has contributed to this trend. While Article 36, paragraph 3, requires the Security Council to recommend to States the use of the ICJ for their “legal disputes,”10 in practice, the Council tends to ignore the possible distinction between purely political aspects and legal issues of the dispute,11 thus neglecting to promote the use of the Court. 8

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, ICJ Reports 1974, p. 201, para. 65. See John G. Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 2005), 18–28. 9 Institut de Droit International, Livre du Centenaire 1873–1973: Evolution et perspective du droit international (Basel: Editions S. Karger, 1973), 279. 10 The UN Charter is conspicuously silent on the definition of a ‘legal dispute’, but Article 36 of the ICJ Statute can help to define it. 11 The distinction implicitly introduced in Article 36, paragraph 3, of the UN Charter between ‘legal dispute’ and ‘political dispute’ is artificial. Indeed, no one ignores the potential transversality of international disputes, which can mix both political and legal issues. Sometimes legal disputes may have political effects, and political problems may have legal implications. As Pierre-François Gonidec observed, “le juridique et le politique ne forment

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It also has been argued that the wording of Article 36, paragraph 3, is one of the reasons for its rare application. Some authors have wondered whether the replacement of the term ‘justiciable’—a term that had been preferred in the Dumbarton Oaks proposals—by the term ‘legal’—which was eventually selected—12 contributed to this under-utilisation.13 However, since it is the World Court that determines whether its jurisdiction covers the dispute submitted to it, the reference to ‘justiciable disputes’ would not have been appropriate.14 The great importance given to State consent by the World Court also contributes to the ‘slumber’ of Article 36, paragraph 3. The need for the parties to accept the Court’s jurisdiction,15 possibly through a special agreement, may explain the rare application of this article,16 given that Article 36, paragraph 3, clearly does not provide for the compulsory jurisdiction of the Court. These observations concerning Article 36, paragraph 3, lead one to consider some issues concerning the nature and evolution of the relationship between the World Court and the Security Council. While the Court could play a complementary role, Article 36, paragraph 3, also reflects a potential competition

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pas un couple antithétique, mais vivent en symbiose car ils se pénètrent mutuellement”. See Pierre-François Gonidec and Robert Charvin, Relations internationales, 3rd edition (Paris: Montchrestien, 1981), 398. André Salomon, Le Conseil de sécurité et le règlement pacifique des différends: Le chapitre VI de la Charte des Nations Unies (Paris: Éditions internationales, 1948), 106: it appeared to the drafters of the Charter that the terminology ‘justiciable’ was “inadequate and defective”. Hersch Lauterpacht, “The Security Council and the Jurisdiction of the International Court of Justice,” in International Law, Collected Papers: Disputes, War, Neutrality, ed. Elihu Lauterpacht, vol. 5 (Cambridge: Cambridge University Press, 2004), parts IX–XIV, 226. Shabtai Rosenne, “The Role of the International Court of Justice in Inter-State Relations Today,” Revue belge de droit international 20 (1987): 284–285: “It is of course a truism to say that the distinction between legal and non-legal or between justiciable and nonjusticiable disputes is not really one which the law can make, although it is often one which courts may be called upon to make (to some extent the idea is the invention of the Supreme Court of the United States, interpreting the Constitution).” ICJ jurisdiction is optional, meaning that the exercise of its functions remains largely dependent on the will of States. See Articles 35 and 36 of the ICJ Statute. Pieter Kooijmans, “The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy,” International and Comparative Law Quarterly 56 (2007): 747; Jean-Marc Thouvenin, “Le rôle du juge international dans le règlement pacifique des différends,” in XXX Curso de Derecho Internacional—2003 (Washington, D.C.: OAS General Secretariat, 2004), 69–70. The latter author points out that obstacles, such as the importance given to State consent, restrict, to some extent, the role of the Court, but notes that these limits are gradually overcome thanks to the audacity of the judges and States.

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between the two organs, and the under-utilisation of the Court could be the manifestation of the emergence of ‘drifts’ of the Security Council.

The Complementarity between the ICJ and the Security Council

Article 36, paragraph 3, of the UN Charter highlights the complementarity of the Security Council and the ICJ in respect of the pacific settlement of disputes. The rare interactions between the Security Council and the Court should encourage their further collaboration. Sometimes, instead of complementing the activities of the Security Council, the Court’s function could replace the role of the Council.

An Underexploited Collaboration

The UN Charter does not introduce a hierarchy among the six principal organs of the Organization, but the Security Council and the ICJ are the only ones who can, in principle, adopt binding decisions.17 The Charter also assigns to the Security Council “primary responsibility for the maintenance of international peace and security.”18 However, as recalled by the ICJ, that responsibility is not exclusive.19 Article 36, paragraph 3, of the UN Charter illustrates this idea of shared responsibility for the maintenance of international peace and security. By mentioning the ICJ in the chapter related to the peaceful settlement of disputes, the Charter provides a reminder that the Security Council is not the only UN organ competent in this field, and not the only one which can provide an effective contribution to the settlement of disputes. Article 36, paragraph 3, cannot be interpreted as subordinating the ICJ to the Security Council. Rather, it points to the need for collaboration between the two UN organs in the field of peaceful settlement of disputes. By suggesting to the Security Council that it recommend that States refer their legal disputes to the ICJ, this provision reflects the complementary action of these two organs. 17

18 19

In the context of disputes, Article 94 imposes the respect of ICJ decisions. See Alain Pillepich, “Article 94,” in La Charte des Nations Unies, Commentaire article par article, ed. Jean-Pierre Cot, Alain Pellet and Mathias Forteau, 3rd edition (Paris: Economica, 2005), 1994. As far as the Security Council is concerned, Article 25 of the UN Charter recognises the binding nature of its decisions. Article 24 of the UN Charter. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 434, para. 95.

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The Court also emphasised such complementarity in its judgment of 1984 concerning the Military and Paramilitary Activities in and against Nicaragua.20 The notion of cooperation in Article 36, paragraph 3, has to be understood as the achievement of common aims. According to this article, the Security Council should promote the use of the ICJ so that both organs strive together, simultaneously or not, to maintain peace and security on the international scene. Indeed, they should work together in the pursuit of international peace and security. Article 36, paragraph 3, encourages the Security Council to support the respect and the development of international law. The UN Charter generally seeks to uphold a strong cooperation between the UN organs in achieving the Organization’s aims. For instance, the Security Council, the General Assembly and also “[o]ther organs of the United Nations and specialised agencies, which may at any time be so authorised by the General Assembly” are entitled to request an advisory opinion from the ICJ.21 This possibility encourages collaboration between the ICJ and the other principal UN organs. As regards Article 36, paragraph 3, the rule is rather flexible.22 The Security Council cannot impose a judicial settlement on the parties to a legal dispute,23 and it does not have the obligation to recommend this method of dispute settlement. Such an obligation would have restricted the powers of the Security Council. It would also have strengthened the role of the ICJ in maintaining international peace and security. Collaboration between the Security Council and the ICJ also takes place when the Court indicates interim measures. This decision is immediately notified not only to the parties but also to the Security Council.24 Moreover, in case of non-compliance with an ICJ judgment, the Security Council can intervene under Article 94, paragraph 2, of the UN Charter, by making recommendations or imposing measures. The Security Council is thus empowered to support the Court’s activities, to strengthen its role. Article 94 also reinforces the idea that the Security Council cannot act like a judge settling a dispute; it may, at 20 21 22

23

24

Ibid., pp. 434–435, paras. 95 and 96. See Article 96, para. 2, of the UN Charter. Because of its formulation, Article 36, para. 3, logically has no binding character. Luigi Condorelli denounces this text as a “vœux timide” towards the Security Council. See Luigi Condorelli, “L’autorité de la décision des juridictions internationales permanentes,” in La juridiction internationale permanente (Paris: Pedone, 1987), 283. Besides, Chapter VI of the UN Charter does not confer on the Security Council the power to impose any peaceful means of dispute settlement, except enquiry, which is sometimes made compulsory under Chapter VII. Article 41, para. 2, of the ICJ Statute.

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most, give support to the enforcement of an ICJ judgment.25 The ICJ has generally conceived its judicial function as a means to facilitate the activities of the other UN organs.26

Judicial Settlement as an Alternative to the Security Council’s Intervention in the Settlement of International Disputes

Also in a perspective of cooperation, Article 36, paragraph 3, reflects the possibility for the ICJ to replace the Security Council in the settlement of international disputes. The Security Council is not the most appropriate organ to decide on the legal issues of a dispute. The idea that the judicial settlement of international disputes can substitute other means of resolution, especially diplomatic negotiations,27 is not new. The Permanent Court of International Justice already said in 1929 that the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties.28 Article 36, paragraph 3, attributes to the ICJ a limited role in the general field of peaceful settlement of international disputes. Its function may appear as ‘subsidiary though not subordinate’ to the Security Council’s role in the area of peaceful dispute settlement insofar as the latter has the primary responsibility.29 While Article 12, paragraph 1, of the UN Charter provides that 25 26

27

28 29

See Catherine Denis, Le pouvoir normatif du Conseil de sécurité des Nations Unies: portées et limites (Brussels: Bruylant, 2004), 223. Mohammed Bedjaoui, “Les relations entre la Cour internationale de Justice et les autres organes principaux des Nations Unies, pour des rapports de seconde génération,” in Boutros Boutros-Ghali Amicorum discipulorumque liber: paix, développement, démocratie (Brussels: Bruylant, 1998), 198–199. Parties to a dispute usually try to resolve it first by negotiations. The intervention of a third party is not automatic. Some writers defend the idea that there is an obligation to first negotiate in case of international disputes. See Charles de Visscher, Aspects récents du droit procédural de la Cour internationale de Justice (Paris: Pedone, 1966), 81. Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, PCIJ, Series A, No. 22, p. 13. Alain Pellet, “The ICJ and the Political Organs of the UN—Some Further but Cursory Remarks,” in Il ruolo del giudice internazionale nell’evoluzione del diritto internazionale e comunitario—Atti del Convegno di Studi in Memoria di Gaetano Morelli, ed. Francesco Salerno (Padua: CEDAM, 1995), 117.

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the General Assembly shall await a request from the Security Council to make a recommendation on a dispute if the latter has already been seized, no provision states such a subordinate relationship between the Security Council and the ICJ with regard to the settlement of a dispute. Logically, the ICJ may decide a dispute submitted to it by the parties without taking into account the position of the Security Council, otherwise its independence and impartiality would be impaired. As far as legal disputes are concerned, the function of the ICJ is less secondary.30 In case of legal disputes, resort to the ICJ should not be perceived as an alternative to the Security Council’s intervention, but as the most appropriate method to resolve them. This method should be applied as a matter of priority when the dispute is not a threat to international peace and security. A joint reading of Article 37, paragraph 1, which provides that “[s]hould the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council”, and Article 36, paragraph 3, could support this idea. Likewise, the ICJ may substitute an action of the Security Council but should do so only if it deems it necessary. When the World Court observes that some measures have already been adopted by the Security Council which are sufficient to contain any risk of aggravation of the dispute, it could decide, for example, not to indicate interim measures, thereby preventing the probability of a conflict.31 Here appears the risk of competition between the ICJ and the Security Council entailed by Article 36, paragraph 3, when the powers of the two organs are exercised in relation to the same dispute.

30

31

Many writers advocate a more important role of the ICJ. See, e.g., Takane Sugihara, “The International Court of Justice—Towards a Higher Role in the International Community,” in Liber Amicorum Judge Shigeru Oda, ed. Nisuke Ando, Edward McWhinney and Rüdiger Wolfrum, vol. 1 (The Hague: Kluwer Law International, 2002), 227–235. Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 3. See Mario Bettati, “L’affaire du Plateau continental de la mer Egée devant la Cour internationale de Justice. Demande en indication de mesures conservatoires. Ordonnance du 11 septembre 1976,” Annuaire Français de Droit International 22 (1976): 112. As the author emphasised, “[l]a saisine concurrente du Conseil de sécurité sur la même question a permis à la Cour de renvoyer les parties à l’application de la résolution adoptée par celui-ci le 25 août 1976, pendant que se déroulaient les audiences à la Haye.”

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The Potential Competition between the Security Council and the World Court

Many writers have emphasised that conflicts may arise in the relationship between the Security Council and the Court in respect of actions of the Security Council under Chapter VI which could be seen as judicial.32 An ambiguity stems from the revision of the Dumbarton Oaks proposals, which were not all reconsidered.33 Chapter VI does not give genuine judicial powers to the Security Council, and it is not possible to interpret any article of this Chapter in this sense.34 One may only consider that the Security Council has been given quasi-judicial powers.35 It has been said that [i]n Article 36(3) the Council is exhorted to encourage States to refer legal disputes to the Court, so that the clear implication is that legal disputes are not the business of the Council.36 But the Security Council is not prevented from dealing with legal disputes. Article 36, paragraph 3, intends to strengthen collaboration between the Court and the Security Council for the peaceful settlement of international disputes. 32

Kathleen Renée Cronin-Furman, “The International Court of Justice and the United Nations Security Council: Rethinking a Complicated Relationship,” Columbia Law Review 106 (2006): 438 writes: “While usually referred to as one of the ‘political organs’ of the United Nations, the Council has a role that eludes easy classification and frequently seems to include adjudicative powers. Much of the confusion about the relationship between Council and Court stems from the Council’s seemingly judicial Chapter VI powers.” 33 See Nigel D. White, The United Nations and the Maintenance of International Peace and Security (Manchester: Manchester University Press, 1990), 61. 34 Veijo Heiskanen, “The United Nations Compensation Commission,” The Hague Academy Collected Courses 296 (2002): 307 notes: “Under Chapter VI, the Security Council is only authorised to make legally non-binding recommendations to the parties with a view to a pacific settlement of the dispute but has no legal authority to impose its views on them. In other words, under the scheme established by the Charter, the Security Council is an executive body that has no authority to exercise judicial (binding dispute-settlement) functions.” 35 White, The United Nations and the Maintenance of International Peace and Security, 61, states: “The addition of Articles 37 and 38 to the proposals were intended to invest the Council with quasi-judicial powers.” See also Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (New York: F.A. Praeger, 1950), 476–477. 36 Derek Bowett, “The Impact of Security Council Decisions on Dispute Settlement Procedures,” European Journal of International Law 5 (1994): 90.

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However, from this shared mission, the shadow of a potential rivalry appears. Indeed, if the functions of the Court and the Security Council can be complementary, they are also likely to be competing when the two organs have to intervene in the same dispute. Aware of this risk of competition, the ICJ noted in the Military and Paramilitary Activities in and against Nicaragua case that the fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings could be pursued pari passu.37 The Court considered that both organs could exercise their functions simultaneously. This is a position also adopted by its predecessor, the Permanent Court of International Justice, in its relations with the Council of the League of Nations.38 Thus, as Shabtai Rosenne observed, there is a ‘parallelism of functions’ between these two UN organs.39 Insofar as what matters is to achieve an effective settlement of international disputes in order to prevent a threat to international peace and security, all efforts should converge. The use of a particular method of settlement should not be an obstacle to other initiatives of pacific settlement. Thus, the ICJ had to deal with several disputes that the Security Council was concerned with in their political dimension, for example, the Aegean Sea Continental Shelf case of 1978.40 As remarked by Judge Lachs in his separate opinion in that case, there are some disputes for which negotiations are sufficient in order to find a solution, but for many others, given their ‘multi-dimensional’ nature, several methods of settlement must be used.41 Therefore, resort, more or less simultaneously, to the ICJ and the Security Council is not only possible but may even be necessary. One can consider that “the intention of the founders [of the UN Charter] was not to encourage a blinkered parallelism of functions but 37 Judgment, ICJ Reports 1984, p. 433, para. 93. 38 See Interpretation of the Statute of the Memel Territory, Preliminary Objection, Judgment of 24 June 1932, PCIJ, Series A/B, No. 47, pp. 248–249; Rights of Minorities in Upper Silesia (Minority Schools), Judgment of 26 April 1928, PCIJ, Series A, No. 15, pp. 23 and 29. 39 Shabtai Rosenne, The Law and Practice of the International Court (Dordrecht: Martinus Nijhoff, 1985), 87. 40 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 3; UNSC Res. 395 (1976) of 25 August 1976. 41 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, Separate Opinion of Judge Lachs, ICJ Reports 1978, p. 52: “The frequently unorthodox nature of the problems facing States today requires as many tools to be used and as many avenues to be opened as possible.”

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a fruitful interaction”.42 Thus, Article 36, paragraph 3, can also be interpreted as defending the parallel exercise of the respective powers of the Security Council and the Court, an exercise that should benefit from positive interactions between them. If Article 36, paragraph 3, of the UN Charter had required the Security Council to recommend resort to the ICJ to the parties in case of a legal dispute, the potential competition or rivalry between the two UN organs would have been reduced. Instead, the Security Council, which is a deeply political organ, sometimes seems to ‘brazenly adorn itself with the judge’s robe’. This image reflects the increasing tendency of the Security Council to expand its powers in the judicial sphere even though it is far from providing the guarantees of independence and impartiality offered by international justice. Although there is no doubt that the Security Council has implied powers43 based on a dynamic interpretation of the UN Charter, there is no provision that could be interpreted as granting the Council judicial powers. Its political nature prevents such an interpretation.44 This does not mean that the Council does not apply international law.45 Apparently exceeding the framework of its powers, the Security Council has sometimes ruled on the international responsibility of a State party to a dispute under Chapter VII of the Charter. For example, the Security Council defined the consequences relating to the responsibility of Iraq after the occupation of Kuwait in 1990–1991. Much like a judge could have done, the Security Council stated in its Resolution 686 (1991) that

42

43

44

45

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, Separate Opinion of Judge Lachs, ICJ Reports 1992, p. 26. Terry D. Gill, “Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter,” Netherlands Yearbook of International Law 26 (1995): 70; Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Portland: Hart Publishing, 2004), 193. Maurizio Arcari, “De l’action parajudiciaire du Conseil de sécurité,” in La sécurité collective entre légalité et défis à la légalité, ed. Maurizio Arcari and Louis Balmond (Milan: Giuffrè Editore, 2008), 83–84; Malcolm N. Shaw, “The Security Council and the International Court of Justice: Judicial Drift and Judicial Function,” in The International Court of Justice‬: Its Future Role After Fifty Years‬, ed. Sam Muller‬, David Raič‬and Johanna M. Thuránszky‬ (The Hague: Martinus Nijhoff, 1997), 219–259. Rosalyn Higgins, “The Place of International Law in the Settlement of Disputes by the Security Council,” in Themes and Theories. Selected Essays, Speeches, and Writings in International Law (Oxford: Oxford University Press, 2009), 174–192.

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Iraq [. . .] is liable under international law for any direct loss, damage—including environmental damage and the depletion of natural resources—or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait.46 Iraq’s responsibility may have been obvious, but a political organ is not always the most adapted body to pronounce on it. In the case of Iraq, the Security Council also considered in Resolution 687 (1991) the issue of the delimitation of the frontier between Iraq and Kuwait by ruling on the legal issues without providing reasons or an opportunity for the States to present their arguments, as would have done the ICJ. This resolution has rightly been criticised.47 The Security Council also had to deal with several territorial disputes. These kinds of issues are often examined by the ICJ,48 quite recently for instance in the judgment concerning the dispute between Burkina Faso and Niger of April 2013.49 These disputes also have political aspects but they can generally be settled only under international law. A solution based on the precise determination of the applicable law—without any economic, political or geostrategic influences—may increase the chances of a peaceful settlement and lead to the parties’ satisfaction. The Security Council can benefit from the assistance of experts by creating a subsidiary organ with the special mandate to discuss frontier delimitation,50 as it did in relation to the dispute between Iraq and Kuwait in 1991, but some political considerations could interfere and undermine the achievement of a fair solution for the parties involved. When the Security Council decided the dispute in 1991, it did not sufficiently justify its decision under the law.51 Thus, when parties to a frontier dispute request the Security 46 47

UNSC Res. 687 (1991) of 3 April 1991. Serge Sur, “La résolution 687 (3 avril 1991) du Conseil de Sécurité dans l’affaire du Golfe: Problèmes de rétablissement et de garantie de la paix,” Annuaire Français de Droit International (1991): 25–97; David K. Nanopoulos, “Remarques sur l’incidence d’une réforme du Conseil de sécurité sur la Cour internationale de Justice,” African Yearbook of International Law 13 (2005): 215–233. 48 Some examples of frontier disputes before the ICJ: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, p. 659; Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005, p. 90; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2007, p. 832; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, ICJ Reports 1992, p. 351. 49 Frontier Dispute (Burkina Faso/Niger), Judgment, ICJ Reports 2013, p. 44. 50 Article 7, para. 2, and Article 29 of the UN Charter. 51 Denis, Le pouvoir normatif du Conseil de sécurité des Nations Unies, 222.

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Council’s assistance, the latter should apply Article 36, paragraph 3, and recommend that the States resort to the ICJ. Although the judicial settlement of such disputes may raise difficulties, as in the dispute between Cameroon and Nigeria,52 the ICJ, due to its high legal expertise, independence and impartiality, still appears to be the most suitable forum.53 The Security Council may be tempted to interfere with the functions of the ICJ. When a State requests the Security Council to exercise its powers in order to settle a dispute and at the same time the ICJ is also seized, the Security Council should not harm the credibility of the UN’s judicial organ. For example, in the Lockerbie case, the adoption of Resolutions 686 (1991) and 748 (1992) by the Security Council clearly showed that this political organ can hamper the independent exercise of international justice. In the manner of a judge, the Security Council ruled on the responsibility of a State and imposed sanctions related to this responsibility. When it adopted these resolutions, the Security Council was aware of the legal issues that were still discussed in the proceedings before the ICJ, at the stage of the request for the indication of provisional measures. But instead of waiting for the ICJ’s decision, the Security Council promptly took a decision under Chapter VII of the UN Charter, without taking into consideration the risk of conflict that could then arise between its resolution and the ICJ judgment. This attitude has been labelled an ‘excès de pouvoir’.54 52

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This dispute has occupied the ICJ from 1994 to 2002. The Court’s decision was at first not implemented. Under the auspices of the UN, Cameroon and Nigeria then agreed to establish a Joint Commission in 2002 to remedy this state of affairs and try to implement the Court’s judgment. After ten years of existence of this Commission, positive developments have been observed. See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Preliminary Objections, Judgment, ICJ Reports 1998, p. 275 and Judgment, ICJ Reports 2002, p. 303; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Nigeria v. Cameroon), Preliminary Objections, Judgment, ICJ Reports 1999, p. 31; Mohamed Salah, “La Commission mixte Cameroun/Nigeria, un mécanisme original de règlement des différends interétatiques,” Annuaire Français de Droit International 51 (2005): 162–184. Géraldine Giraudeau, Les différends territoriaux devant le juge international: Entre droit et transaction (Leiden: Martinus Nijhoff, 2013), 53. Order of 14 April 1992, Dissenting Opinion of Judge ad hoc El-Kosheri, ICJ Reports 1992, p. 105, para. 33. Judge ad hoc El-Kosheri considered that the ‘excès de pouvoir’ of the Security Council arises from the adoption of paragraph 1 of resolution 748 (1992), which violates Article 92 of the UN Charter which makes the ICJ “the principal judicial organ of the United Nations.”

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The Court admitted the pre-eminence of Resolution 748 (1992) of the Security Council by considering it prima facie valid and did not indicate any provisional measures.55 But as Judge Bedjaoui noted, the ICJ would have been competent to decide this case even though the Security Council had also taken a decision on the dispute.56 The ICJ should exercise its functions without being restricted by the Security Council’s concomitant initiatives. If a legal dispute is before the ICJ, the latter should not capitulate because the Security Council is also examining the case. The Court should fully assume its role without faltering before the power of the Security Council. The Lockerbie case was the first to vigorously illustrate the difficulties that can emerge between the ICJ and the Security Council, but the relationship between the UN judicial organ and the most important political organ of the Organization remains complicated.57 By being a forum providing discussions and convergence of member States and attributing an international authority to their collective decisions, the Security Council is the most active UN organ for the settlement of international disputes.58 During the last twenty years, especially relying on the gravity of certain disputes, the Security Council has expanded its prerogatives based on Chapter VII of the UN Charter. Sometimes acting like a ‘World Government’, a legislator or a judge, the Security Council has been pushing the limits imposed on its functions.59 Under Chapter VII, the Security Council may, under certain conditions, establish a subsidiary organ invested with such judicial powers.60 This subsidiary organ would have functions that the Security Council would not be able to exercise itself.61 Furthermore, it would be possible for the Security Council to deal with legal disputes under Chapter VII and go further than a

55 56 57 58 59

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Order of 14 April 1992, ICJ Reports 1992, p. 3. Order of 14 April 1992, Dissenting Opinion of Judge Bedjaoui , ICJ Reports 1992, pp. 33–49. Pellet, “The ICJ and the Political Organs of the UN,” 115–116. Serge Sur, “Éloge du Conseil de sécurité,” Annuaire français de relations internationales VI (2005): 76. François Voeffray, “Le Conseil de sécurité de l’ONU: Gouvernement mondial, législateur ou juge? Quelques réflexions sur les dangers de dérives,” in Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch, ed. Marcelo G. Kohen (Leiden: Martinus Nijhoff, 2007), 1195–1209. Article 7, para. 2, and Article 29 of the UN Charter. For a discussion see, e.g., Danesh Sarooshi, “The Legal Framework Governing United Nations Subsidiary Organs,” British Year Book of International Law 27 (1996): 413. de Wet, The Chapter VII Powers of the United Nations Security Council, 339.

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simple recommendation.62 But Chapter VII could also be used as a pretext in order to take precedence over the Court and exercise some prerogatives that could be exercised by judges. Any legal dispute could be considered a threat to international peace and security by the Security Council, which could then act as a judge and avoid making a recommendation under Article 36, paragraph 3. One may argue that if the Security Council, under Chapter VII, determined the parties’ rights and settled a legal dispute, this could blur the distinction between Chapters VI and VII of the UN Charter.63 The question of the potential violation of international law by the Security Council64 raises the issue of the review of its decisions.

Concluding Remarks

Notwithstanding the limited application of Article 36, paragraph 3, of the UN Charter, this provision maintains its relevance as it highlights the role of the ICJ in the maintenance of international peace and security and the need for cooperation between the Court and the Security Council. The application of this article deserves to be enhanced so as to allow the ICJ to play a more significant role in the peaceful settlement of disputes. This ultimately depends on the willingness of States.

62

Michael C. Wood, “The Security Council as a Law Maker: The Adoption of (Quasi)-Judicial Decisions,” in Developments of International Law in Treaty Making, ed. Rüdiger Wolfrum and Volker Röben (Berlin: Springer, 2005), 227–235. 63 Denis, Le pouvoir normatif du Conseil de sécurité des Nations Unies, 218. 64 Evelyne Lagrange, “Le Conseil de sécurité des Nations-Unies peut-il violer le droit international?,” Revue belge de droit international (2004): 568–591.

chapter 4

Judicial Integrity and the Advisory Jurisdiction of the International Court of Justice Christopher Greenwood Introduction The advisory jurisdiction conferred on the International Court of Justice by Article 96 of the United Nations Charter and Article 65 of the Statute of the Court represents a significant part of the overall work of the Court. During its first 67 years, the Court has given 26 advisory opinions,1 compared to 116 judgments in contentious cases (67 of which were judgments on the merits), covering a broad range of subjects, which included not only the predictable issues of United Nations law and international civil service staff cases but also questions of international humanitarian and human rights law, acquisition of territory and decolonisation, the law of treaties and declarations of independence. Many of these broader questions also arose in contentious cases before the Court. There are, of course, important differences between the advisory and contentious jurisdictions. Contentious cases take place between the States parties to a dispute, whereas the advisory jurisdiction can be invoked only by the Security Council, the General Assembly or one of the other UN organs or specialised agencies duly authorised by the General Assembly in accordance with Article 96, paragraph 2, of the Charter and there are no ‘parties’ in the sense in which that term is used in the contentious jurisdiction. Moreover, while Article 59 of the Statute makes the judgment of the Court in a contentious case binding on the parties to that case, no provision of the Statute or the Charter imposes an obligation of compliance with an advisory opinion. It is true that advisory opinions are sometimes binding on the organization which requests them but in such cases the binding quality results from the provisions

* Judge at the International Court of Justice. 1 It should be noted, however, that the Permanent Court was kept far busier by its advisory jurisdiction. In the 18 years of its active existence, the Permanent Court delivered 27 advisory opinions.

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of a legal instrument other than those under which the Court operates;2 so far as the Court is concerned, advisory opinions are ‘advisory’. Nevertheless, it is important to recall what Judge Gros said in his declaration in the Western Sahara case: “when the Court gives an advisory opinion on a question of law it states the law” and “the absence of binding force does not transform the judicial operation into a legal consultation, which may be made use of or not according to choice”.3 That reminder is but one reflection of a principle which the Court and its predecessor have stressed from the outset, namely that in the exercise of its advisory jurisdiction it must be careful to maintain its integrity as a judicial institution. As the Permanent Court put it, “the Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding [its] activity as a Court”.4 The Court has various means open to it to ensure that its judicial integrity is not compromised by a request for an advisory opinion. In the last resort, it can exercise its discretion to decline to give an opinion if it considers that this course is necessary to protect its judicial integrity. The existence of that discretion was asserted by the Permanent Court in the Eastern Carelia case and has been repeated on numerous occasions by the present Court.5 Although the Court has always insisted that “the exercise of its advisory jurisdiction represents its participation in the activities of the 2 See, e.g., Article XII, paragraph 2, of the Statute of the International Labour Organization Administrative Tribunal relating to review of the decisions of the ILOAT, which was recently considered by the Court in 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, ICJ Reports 2012, p. 10 (the “IFAD Opinion”). The Court there repeated what it had said in Judgments of the Administrative Tribunal of the ILO upon Complaints made against the UNESCO, Advisory Opinion, ICJ Reports 1956, p. 84, that “that effect goes beyond the scope attributed by the Charter and the Statute of the Court to an advisory opinion”. In both the UNESCO and IFAD cases, the Court held that this additional effect derived from the ILOAT Statute “does not affect the way in which the Court functions; that continues to be determined by its Statute and Rules” (IFAD Opinion, ICJ Reports 2012, p. 23, para. 28). Advisory opinions are also treated as binding under a number of treaties; see, e.g., Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p. 62, applying Article VIII, Section 30 of the 1946 Convention on the Privileges and Immunities of the United Nations. 3 Western Sahara, Advisory Opinion, Declaration of Judge Gros, ICJ Reports 1975, p. 73, para. 6. 4 Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ, Series B, No. 5, p. 29. For application of this principle by the current Court, see IFAD Opinion, ICJ Reports 2012, p. 25, para. 34. 5 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 156, para. 44.

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[United Nations] Organization and, in principle, should not be refused”6 and “compelling reasons” are required if the Court is to refuse a request,7 there is no doubt that if the Court considered that it could not respond to a request for an advisory opinion without compromising its judicial character, then it would exercise its power to refuse.8 That power has, however, never been used by the present Court. It is, therefore, perhaps of more interest to consider some of the other, less drastic, ways in which the Court has attempted to ensure that its judicial integrity is preserved in the exercise of its advisory jurisdiction. To that end, I propose to examine three matters: the Court’s willingness to depart from the terms of the question put to it by the requesting body; the difficulties of fact-finding in the advisory jurisdiction; and the difficulties of ensuring due process in hearing certain types of advisory request.

The Willingness of the Court to Depart from the Terms of the Question

The Court has never considered itself bound to adhere to the precise terms of the question on which it is asked to give an opinion. Thus, it has considered itself free to reformulate questions which were badly drafted9 and to simplify questions which were unnecessarily complicated or repetitive.10 More importantly, in the Interpretation of the Agreement of 25 March 1951 6 7 8

9 10

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion, ICJ Reports 1950, p. 71. UNESCO Opinion, ICJ Reports 1956, p. 86. The power to refuse to respond to a request is not, however, limited to the preservation of the judicial integrity of the Court; see the discussion in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, pp. 415–423, paras. 29–48, and the separate opinion of Judge Keith, pp. 482–490. The present Court has never actually exercised its discretion to refuse to give an advisory opinion; the decision in Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66 was based on the finding that the request did not arise within the scope of the activities of the WHO, so that an essential condition for the jurisdiction of the Court was not satisfied (see p. 84, para. 31). See, e.g., Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1982, p. 325. In the IFAD Opinion, the Court was confronted with a set of nine questions, essentially raising the same point, and decided that it need answer only two; ICJ Reports 2012, p. 48, para. 96.

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between the WHO and Egypt, the Court stated that “if it is to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction, it must ascertain what are the legal questions really in issue in questions formulated in a request”.11 A similar approach may be seen in the opinion on Admissibility of Hearings of Petitioners by the Committee on South West Africa and, even more clearly, in the trenchant comments by Judge Lauterpacht in his separate opinion, where he remarked that “the General Assembly, although actually desirous of an answer of the Court bearing upon a specific situation, cast its request in an apparently general form unrelated to that situation” and warned that “it is a matter of common experience that a mere affirmation or a mere denial of a question does not necessarily result in a close approximation to truth”.12 In this connection, the reformulation by the Court of the question posed by the General Assembly in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo is of particular interest. The General Assembly had asked the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?13 Whether the authors of the declaration of independence were in fact the Provisional Institutions of Self-Government of Kosovo was, however, disputed. The Court held that this was a matter which the Court had to decide and, after considering the evidence before it, concluded that the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration.14

11 12 13 14

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, p. 88, para. 35. Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, Separate Opinion of Sir Hersch Lauterpacht, ICJ Reports 1956, p. 37. Advisory Opinion, ICJ Reports 2010, p. 407, para. 1. Ibid., pp. 447–448, para. 109.

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The Court therefore proceeded to give an opinion on the accordance with international law of the declaration made by those representatives thus, in effect, reformulating the question put to it so as to remove the reference to the Provisional Institutions of Self-Government. That decision has attracted some controversy.15 To the extent that the controversy concerns whether the Provisional Institutions were in fact the authors of the declaration, it falls outside the scope of this paper. What is of immediate concern, however, is whether the Court was entitled to investigate that matter for itself and, having come to the conclusion that the declaration was not the work of the Provisional Institutions as such, to depart from the terms of the question put to it. The Court considered that it was the protection of the judicial function which required it to examine the identity of the authors of the declaration for itself, rather than treating that matter as settled by the terms of the question. The Court observed: The identity of the authors of the declaration [. . .] is capable of affecting the answer to the question whether that declaration was in accordance with international law. It would be incompatible with the proper exercise of the judicial function for the Court to treat that matter as having been determined by the General Assembly.16 That is surely right. It is difficult to see how, without compromising its judicial integrity, the Court could provide an answer to a question regarding the legality of an action while considering that the terms of that question precluded it from inquiring into an issue which had a bearing on whether or not that action was lawful. Having conducted its own inquiry and concluded that the Provisional Institutions were not the authors of the declaration, the Court could not then have answered the question as originally formulated. In those circumstances, the only response it could have given to the question as originally formulated would have been that there had been no such declaration, an answer which would have been wholly unhelpful to the General Assembly.

15

16

See the dissenting opinions and Mohamed Bennouna, “The Advisory Function of the International Court of Justice in the Light of Recent Developments,” in The Global Community: Yearbook of International Law and Jurisprudence, ed. M. Cherif Bassiouni et al. (New York: Oceana, 2013), 98. Advisory Opinion, ICJ Reports 2010, p. 424, para. 52.

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The Difficulties of Fact-finding in the Advisory Jurisdiction

Since requests for advisory opinions are frequently (as Judge Lauterpacht emphasised in the opinion quoted above) bound up with specific situations, it will be necessary for the Court to have a clear picture of that specific situation if it is to give an answer which is helpful to the requesting body and is compatible with the Court’s judicial function. That can present problems if the facts are not easy to establish. In many cases, no real problem arises because the Court finds that the body requesting an advisory opinion has supplied all the elements necessary for the Court to give a reply to the question. Moreover, Article 66, paragraph 2, of the Statute provides for all States entitled to appear before the Court and any international organization considered by the Court “as likely to be able to furnish information on the question” to be notified of the request and to be afforded the opportunity to make written and, if oral proceedings are held, oral submissions to the Court.17 The Court has interpreted this provision as giving it a broad power to seek information from those who might be in a position to provide it. Thus, in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court decided that Palestine could submit observations and in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, it considered that the authors of the declaration of independence were likely to be able to furnish information on the question and invited them to make written and oral submissions. While the Court will, therefore, usually have a substantial dossier of information available to it, resolving disputed points of fact may still prove problematic. Determining the facts relevant to a particular case can, of course, present serious problems in contentious cases but the difficulties which arise in the contentious jurisdiction are greatly reduced by the effect of the burden of proof. As the Court has repeatedly held, “it is the duty of the party which asserts certain facts to establish the existence of such facts”,18 and if that party fails to establish the existence of those facts, the Court can give judgment on the basis that the relevant allegation has not been proved. In advisory proceedings, 17

18

While no State or organization is obliged to respond to this invitation, in several cases many have done so. Thus, in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, a total of forty-two States and the authors of the declaration took part. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 71, para. 162.

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however, subject to one qualification which will be considered in the next section, there are no parties and thus no burden of proof as such. The result is that if the Court considers that it does not have sufficient information before it to enable it to resolve a particular issue of fact, it cannot fall back upon considerations of burden of proof and may, therefore, be unable to answer the question in whole or in part if it is to remain faithful to its judicial function. While the Court has never held that it lacked sufficient information to give an opinion, in Legality of the Threat or Use of Nuclear Weapons, it considered that it lacked sufficient information to return a full answer. Thus, in the critical paragraph 2(E) of its conclusions in that case, the Court stated: It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.19 On any analysis, this paragraph is less than satisfactory. It was adopted by seven votes to seven on the casting vote of President Bedjaoui, with the dissenting votes including those of judges who criticised the Court for pronouncing what was in effect a non liquet and contended that the Court should have ruled that there were—or at least might be—circumstances in which a nuclear weapon might lawfully be used, as well as judges who criticised the Court for leaving any possibility that nuclear weapons could ever lawfully be employed. Moreover, the idea that “an extreme circumstance of self-defence” might legitimise what would otherwise be a violation of international humanitarian law (if that was indeed what the paragraph implies, which is not entirely clear) suggests that jus ad bellum may prevail over jus in bello, something which was not advocated by any State participating in the proceedings and is contrary to decades of doctrine and jurisprudence.20 The second part of operative paragraph 2(E) also has the uneasy appearance of having been bolted onto 19 20

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 266, para. 105, subpara. 2(E) (emphasis added). See Christopher Greenwood, “Jus ad bellum and jus in bello in the Nuclear Weapons Advisory Opinion,” in International Law, the International Court of Justice and Nuclear

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the opinion at a late stage. The only basis for it in the reasoning of the Court is a short section of the opinion, culminating in paragraph 97, which echoes the language of paragraph 2(E) but with one significant difference. Whereas paragraph 2(E) speaks of the use of nuclear weapons “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”, paragraph 97 refers to the use of nuclear weapons “by a State in an extreme circumstance of self-defence, in which its very survival would be at stake”. In a world with few nuclear powers but many States connected by alliances of one kind or another to a nuclear-armed State, this is a nuance of language which has the potential to be of considerable importance. Finally, paragraph 2(E) blends a complaint about the lack of factual information with a curious reference to “the current state of international law”, which invites the criticism of a non liquet. Nevertheless, for present purposes, the important point is that the Court did consider that it lacked the factual information necessary for it to give a full answer to the question put to it. That emerges most clearly from paragraph 94, in which the Court stated: The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the “clean” use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view.21 Whether any State (or organization) could have supplied that kind of information is open to question.

The Difficulties of Ensuring Due Process

A central concern in relation to the preservation of judicial integrity in any proceedings must be that those proceedings properly respect the principles of due process and, in particular, of equality of arms, as those principles have evolved over time. That presents particular problems in relation to one type

21

Weapons, ed. Philippe Sands and Laurence Boisson de Chazournes (Cambridge: Cambridge University Press, 1999), 247–267. Advisory Opinion, ICJ Reports 1996, p. 262, para. 94.

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of advisory proceeding, namely that in which an international organization requests an advisory opinion from the Court regarding the validity of a ruling by a staff tribunal.22 Five of the 26 advisory opinions given by the International Court of Justice have concerned this kind of request.23 Formally speaking, the position before the Court is that, as these are advisory proceedings, there are no parties. However, the subject on which the Court is asked to rule in this type of case is the validity of a decision given by a tribunal in proceedings between two parties, namely the staff member initiating those proceedings and the international organization against whom the complaint is made. In effect, the Court acts as a review body in relation to the outcome of proceedings which were contentious. Moreover, its advisory opinion has a binding effect, so that if it rules that the tribunal’s decision was invalid, the staff member will lose the benefit of the judgment in his or her favour which had been given by the administrative tribunal. The reality, therefore, is that the Court has to consider the rights and interests of both the parties to the original proceedings. That gives rise to concern in two respects. First, only one of those parties, the international organization, may invoke the advisory jurisdiction of the International Court of Justice; the individual staff member has no right to seek an advisory opinion. In the case of judgments of the United Nations Administrative Tribunal, the inequality of access to the Court was ameliorated by the fact that staff members were given access to a review process which could lead to a request for an opinion from the Court. Three of the staff cases before the Court concerned judgments of UNAT. Provision for either party to challenge a judgment of UNAT by means of advisory proceedings in the Court was, however, brought to an end in 1995. The situation with judgments of the International Labour Organization Administrative Tribunal is different. Under Article XII of the ILOAT Statute, there is no comparable provision giving access for the staff member to a review procedure, with the result that the international organization which is the respondent before the ILOAT may challenge the validity24 of a judgment given in favour of a staff 22

23

24

Concerns about ensuring due process may, however, arise in other types of advisory proceedings where the conduct of one State or international organization may be at the heart of the issue in respect of which an opinion is sought. UNESCO Opinion, ICJ Reports 1956, p. 77; Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, p. 166; Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1982, p. 325; Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1987, p. 18; and IFAD Opinion, ICJ Reports 2012, p. 10. Article XII, para. 1, of the ILOAT Statute provides for a challenge on the basis that the tribunal exceeded its jurisdiction or committed a fundamental error of procedure.

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member but there is no scope for a staff member to bring about a challenge to a judgment in favour of the respondent organization. Secondly, the staff member has no standing before the Court. It is the responsibility of the international organization to supply the Court with the relevant factual material and to communicate to the Court any submissions which the staff member may wish to put before the Court. In both respects, the Court is asked to exercise its advisory jurisdiction under conditions in which the equality of the parties to the original proceedings is absent in the proceedings before the Court. Whether such proceedings are compatible with the judicial function was first considered by the Court in 1956. The Court, while recognising the concerns regarding inequality of access, considered that they were not sufficient to justify it in declining to respond to the request for an advisory opinion. It stated that the inequality of access was not an inequality before the Court but something antecedent to the examination of the question by the Court. In addition, it thought that the inequality was more apparent than real, since the staff member would have no interest in challenging the judgment of the tribunal as that judgment was in the staff member’s favour.25 The first consideration is formalistic to say the least. The second is frankly bizarre. Of course, if the respondent organization challenges a tribunal judgment it will be because that judgment was in favour of the staff member and the latter will therefore have no interest in bringing a challenge against that judgment, but that fact does not obviate the inequality of access. Staff members commencing proceedings do so in the knowledge that a judgment in their favour may be challenged but that they cannot challenge a judgment against them. This matter has recently been reconsidered by the Court in its advisory opinion in Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint filed against the International Fund for Agricultural Development. The Court there drew attention to the fact that concepts of due process and equality of arms had undergone considerable development in the years since the 1956 opinion. It referred, inter alia, to the General Comments of the United Nations Human Rights Committee on Article 14 of the International Covenant on Civil and Political Rights, which guarantees equality before courts and tribunals, a principle which the Court, in its 1956 opinion, described as following from “the requirements of good administration of justice”.26 The Court concluded that:

25 26

UNESCO Opinion, ICJ Reports 1956, p. 85. Ibid., p. 86.

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That principle must now be understood as including access on an equal basis to available appellate or similar remedies unless an exception can be justified on objective and reasonable grounds [. . .]. [. . .] questions may now properly be asked whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals.27 The Court also considered that it had a duty to ensure as far as possible equality in the proceedings before it. To that end it had required IFAD to transmit statements from the staff member (Ms Saez Garcia) and declined IFAD’s request for oral proceedings in which Ms Saez Garcia would not have been entitled to take a direct part. The Court noted that “the process was not without its difficulties”.28 IFAD had required several requests before it had supplied all the information requested by the Court, had failed to inform Ms Saez Garcia in a timely way of certain procedural requests which it made to the Court and had initially failed to transmit to the Court certain communications from Ms Saez Garcia. In the end the Court concluded that the proceedings had been fair but only as a result of its own insistence.29 The formal position cannot be allowed to mask the reality of this type of advisory proceeding. That reality is that there are two parties and that the Court is asked to give an opinion which will act as a final decision on the rights and obligations of those two parties towards one another. Recognition of that fact has at least two implications. First, it is incompatible with the integrity of the Court as a judicial body for it to proceed in a case of this kind without ensuring the equality of arms between those two parties. Secondly, this type of case is one in which the burden of proof may be applied in the event of a factual dispute, although care is needed if it is to be applied to the detriment of the staff member, given that the staff member lacks direct access to the Court. There is, however, a more important concern, namely whether such proceedings should be brought at all. In IFAD, the Court took the view that since it had ensured equality of arms in the proceedings themselves, it would be wrong to refuse to respond to the question and thus withdraw without warning from a system which had been in place for several decades. The warning for the future is nonetheless clear. It is to be hoped that it is heeded and that the IFAD case is the last of its kind.

27 28 29

IFAD Opinion, ICJ Reports 2012, p. 29, para. 44. Ibid., p. 30, para. 46. See also Judgment No. 3152 of the ILOAT given on 6 February 2013, which is sharply critical of the approach of IFAD.

chapter 5

Peace, Justice, and Provisional Measures Hugh Thirlway The present paper was the basis of an oral presentation at the Conference held on 23 September 2013 to mark the centenary of the Peace Palace; the title of that Conference was “The ICJ in the Service of Peace and Justice”. I took that title as my cue, or as my point of reference; and on that basis the question that occurred to me was this: in the context of the international legal system, in what sense can the Court be said to be in the service of peace, other than through its work of dispensing justice? In other words, is the Court not rather operating in the service of peace through justice? This may appear to be no more than a verbal quibble, but it is related in my thinking to some decisions taken by the Court, in which the Court has reacted to situations brought to its attention in which peace has been threatened or broken, some involving ongoing armed hostilities. When Andrew Carnegie was contemplating the benefaction that created the Peace Palace, his friend Andrew Dickson White1 wrote to him on the subject. He offered the idea of “[a] temple of peace where the doors are open, in contrast to the Janus-temple, in times of peace and closed in cases of war”.2 In that connection, however, may I digress for a moment to recount here an incident from my initial period of service with the Court (1968–1994). In December 1971 I attended, in a very junior capacity, a meeting between the Vice-President of the Court and the agents of two States parties to a case before the Court.3 That very day, open warfare had been declared between those two States, India and Pakistan. The meeting proceeded in perfect tranquillity; so far as I can recall, no allusion was made by anyone to the hostilities. The doors of the temple of peace remained open to States who were, at that moment, active belligerents.

* Professor of International Law, University of Leiden; former Principal Legal Secretary of the ICJ. 1 Sometime US Ambassador to Russia, and co-founder of Cornell University; US delegate to the 1899 Hague Peace Conference. 2 Letter from Andrew Dickson White to Andrew Carnegie, 5 August 1902. 3 See Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Order of 3 December 1971, ICJ Reports 1971, p. 350.

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That was, sadly, by no means the last occasion on which the Court has been faced with, or aware of, a situation of armed hostilities, or involving the risk of such hostilities, between the parties to a case before it. The most recent was when it was asked to indicate provisional measures in the case concerning interpretation of the Temple judgment, and that decision will be the focus of my remarks. Let me be frank: when I first read a summary account of this decision,4 the cynical thought occurred to me: ‘Now that the Court has discovered that its provisional measures are more than just recommendations, it is going into the peace-making business in competition with the Security Council!’ An unworthy suspicion, perhaps; and on closer consideration, the developments in the Court’s jurisprudence do not justify such a crude assessment; but development there has been, and the purpose of this paper is briefly to consider them. By way of preliminary: it is of course well settled in the Court’s case-law that for the Court to indicate provisional measures under Article 41 of its Statute, a first condition is that the existence of jurisdiction over the dispute must be at least prima facie established.5 Where the main proceedings consist of a request for interpretation under Article 60 of the Statute, as in the Temple (Interpretation) case, that article in itself supplies the jurisdictional element—provided, of course, that the requirements of that text are satisfied. Secondly, even if the existence prima facie of a title of jurisdiction is shown, the only rights that can be protected by provisional measures are the rights asserted in the main proceedings, the rights which the Court thus has prima facie jurisdiction to declare or protect.6 If a request for provisional measures automatically gave 4 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, ICJ Reports 2011, p. 537. 5 See for example the dictum in Fisheries Jurisdiction: “[. . .] on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest”. Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, ICJ Reports 1972, p. 33, para. 16. 6 See Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, ICJ Reports 1990, p. 64. The proceedings were brought to obtain a ruling from the Court on the “existence and validity” of the award (which related to a maritime boundary); the provisional measures requested were however directed to restraining Senegal from alleged activities in the disputed area, which, it was suggested, were such as to prejudge the Court’s judgment. The Court dismissed the request for measures, not for lack of jurisdiction, but on the ground that “the alleged rights sought to be made the subject of provisional

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the Court a wider jurisdiction than that conferred by the title of jurisdiction on which the main claim is based, the requirement to establish prima facie merits jurisdiction would be pointless. So much is, I think, established law. If a situation of recent or ongoing hostilities is brought to the attention of the Court in the context of a request for provisional measures, what is the position? By what considerations should the Court be guided? Judge Ranjeva in 1996, I think, put his finger on the point I have in mind, in the Land and Maritime Boundary case. In that case the Court indicated provisional measures in a situation involving armed conflict. Judge Ranjeva attached a declaration in which he said that in the case of a request for provisional measures owing to the occurrence of an armed conflict, grafted on to a legal dispute [. . .], the indication of measures that may have a military character does not form part of a general regulatory function, which neither the Charter nor the Statute has conferred upon the Court.7 Having excluded any ‘general regulatory function’ for the Court, Judge Ranjeva however continued: Such decisions represent, on the one hand, measures required by the circumstances of the case which are evaluated by the Court in the exercise of its discretionary power and, on the other hand, a contribution by the Court to ensuring the observance of one of the principal obligations of the United Nations and of all its organs in relation to the maintenance of international peace and security.8 It seems to me that there is some contradiction here. As Judge Ranjeva had himself just observed, it is difficult to find a constitutional ground for this second suggested basis for the Court indicating measures. Does the Court, as one of the organs of the United Nations, nevertheless have an obligation to ensure observance of the maintenance of international peace and security, in parallel measures are not the subject of the proceedings before the Court on the merits of the case; and [. . .] any such measures could not be subsumed by the Court’s judgment on the merits” (ibid., p. 70, para. 26). 7 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Provisional Measures, Order of 15 March 1996, Declaration of Judge Ranjeva, ICJ Reports 1996, p. 29. 8 Ibid.

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to its judicial duty? Is that a basis for indicating measures going beyond the rights asserted in the main proceedings? Any court faced with a situation where the relations between the parties to a case before it involved a threat to peace, and thus a threat to human life, would be reluctant to fold its hands, and say ‘There is nothing we can do’. The death penalty cases, Breard, LaGrand, and Avena, showed the Court, according to some observers, stretching the requirements I have mentioned for the indication of measures in the hope of saving a threatened life. Yet in principle, failing some sort of constitutional powers under the Charter system of the kind hinted at by Judge Ranjeva, this must sometimes be the only course which could be followed consistently with the law. One other judge sitting in that same Land and Maritime Boundary case in 1996 was a jurist who was always prepared to follow a legal argument to its logical conclusion: Judge Shigeru Oda. He too attached a declaration to the provisional measures order, in which he criticised some of its terms as too wide, on the basis of his belief “that loss of life in the disputed area, distressing as it undoubtedly is, does not constitute the real subject matter of the present case”.9 Let us look briefly at the treatment, in provisional measures, of activities threatening hostilities, in relation to jurisdiction and rights claimed. In the case of Military and Paramilitary Activities in and against Nicaragua in 1984, Nicaragua complained, as the case-title indicates, of armed activities against it and asked for measures to protect “the rights of Nicaraguan citizens to life, liberty and security”, as well as “the right of Nicaragua to be free at all times from the use or threat of force against it by a foreign state”.10 It was also alleged by the United States that the Nicaraguan armed forces had “conducted open armed attacks across its borders”,11 so that there was some reason to consider that there was a risk on both sides of further hostilities. Yet the Court did not include in the measures ordered anything that covered this aspect, specifically or otherwise.12 9

10 11 12

Declaration of Judge Oda, ICJ Reports 1996, p. 27. Similarly, at the first stage of the LaGrand case, Judge Oda only reluctantly supported the indication of provisional measures to stave off LaGrand’s execution, since he thought that, as a matter of law, the request should be dismissed: see LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, Declaration of Judge Oda, ICJ Reports 1999, pp. 18–20. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, ICJ Reports 1984, p. 182, para. 32. Ibid., para. 30. See the measures ordered at ibid., pp. 186–187, para. 41. However, the reason may well have been that such an indication might compromise the Contadora negotiation process

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In the Frontier Dispute case in 1986 between Burkina Faso and Mali, jurisdiction was limited to determining “[w]hat is the line of the frontier” between the parties “in the disputed area as defined below”.13 This aspect should be underlined. In many international disputes, the subject-matter of the dispute may be such that an outbreak of hostilities, or the use of armed force, between the parties, would necessarily, or at least probably, prejudicially affect the rights claimed. In a frontier dispute, this will normally not be so. A judgment defining a frontier is in essence declarative, not constitutive; the frontier is what it is, and a party may not better its position by armed force, nor even by invasion and occupation.14 The Chamber in the Frontier Dispute case mentioned, as a criterion, what measures “may conduce to the due administration of justice”, not—it may be noted—to the preservation of peace as such;15 and the primary basis of the measures indicated was “with a view to preventing the aggravation or extension of the dispute”, even though, as the Chamber had just noted, the armed actions could not affect the legal outcome.16 The Chamber did however go a little beyond this finding: it noted that when parties had come to the Court for peaceful settlement of a dispute, and incidents subsequently occur which not merely are likely to extend or aggravate the dispute but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes, there can be no doubt of the Chamber’s power and duty to

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(see p. 184, para. 35); but the order contains no hint that this was a consideration present to the mind of the Court. Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, ICJ Reports 1986, p. 8, para. 14. In the context of the request for provisional measures, neither party invoked any threatened loss of life; a ceasefire had already been agreed, and the Chamber simply indicated that the parties should continue to observe it, and withdraw their forces behind agreed lines: ibid., pp. 11–12, para. 32 (1) D. Cf. the PCIJ decision on the Legal Status of the South-Eastern Territory of Greenland, Order of 3 August 1932, PCIJ, Series A/B, No. 48, p. 285, quoted in the Frontier Dispute order, ICJ Reports 1986, p. 9, para. 17. The Chamber in the latter case nevertheless took note of the fact that the armed actions brought to its attention “took place within or near the disputed area as defined by the Special Agreement” (ibid., para. 16). Ibid., p. 9, para. 19. Ibid., para. 18. This possibility of indicating measures “for the sole purpose of preventing the aggravation or extension of a dispute” was an idea carefully left aside by the Court in 1976: see Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 13, para. 42.

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indicate, if need be, such provisional measures as may conduce to the due administration of justice.17 The last formula sounds well, but on inspection appears to say either everything or nothing. It could mean that the Court could forbid any use of force so long as the case was sub judice: or it could be said that, unless the use of force was such as to hamper a party in the presentation of its case, the administration of justice would not be affected by it, so that measures would be neither necessary nor justified. In the Land and Maritime Boundary case in 1996, to which I have already referred, and in the Armed Activities case between the DRC and Uganda in 2000, no jurisdictional problem arose, as both parties had filed general acceptances of the Court’s jurisdiction. On the basis of such acceptances, the Court clearly had jurisdiction to deal with a claim made on the merits involving the use of armed force; and consequently a request for provisional measures of this nature would raise no jurisdictional problem. In the first case, a ceasefire had already been agreed, and the Security Council had issued a call for it to be respected,18 a call which the Court repeated in its order,19 and in the second case measures were indicated requiring abstention from armed actions.20 When provisional measures were requested in the case between Georgia and Russia in 2008, jurisdiction was based on the International Convention on the Elimination of All Forms of Racial Discrimination; although the situation was one of hostilities, the measures indicated were focussed strictly on matters covered by that Convention.21 In the still more recent case between Costa Rica and Nicaragua, there was a request for provisional measures, but there were no military personnel involved, and no suggestion of human lives being endangered.22 17

18 19 20 21

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Order of 10 January 1986, ICJ Reports 1986, p. 9, para. 19. In the course of the discussion on 23 September 2013, President Bedjaoui expressed agreement with the view here taken that the Chamber could be said to have gone beyond the powers conferred by Article 41 of the Court’s Statute. Order of 15 March 1996, ICJ Reports 1996, p. 23, para. 45. Ibid., p. 24, para. 49 (2) and (3). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, ICJ Reports 2000, p. 129, para. 47 (1). Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, pp. 398–399, para. 149. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, p. 6.

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Against this background, I turn to the decision mentioned at the outset: the order indicating provisional measures in the case of the request for interpretation of the judgment in the case of the Temple of Preah Vihear. Article 60 of the Court’s Statute provides that the judgment in a case “is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”—construe it, that is to say interpret it, nothing more. As long ago as 1962 the Court had decided what was essentially a boundary dispute between Cambodia and Thailand, but the situation on the ground had, it seems, never since been properly regulated. In 2011 Cambodia submitted a request to the Court, under Article 60, to provide an interpretation of that decision, to clarify certain allegedly disputed points. At the same time, Cambodia drew attention to certain military activities in or around the disputed area, and asked the Court to indicate provisional measures to preserve the status quo pending the decision. On 18 July 2011 the Court made an order indicating such measures directed to defusing the situation, including the definition of a “provisional demilitarized zone”.23 That part of the order was unprecedented: it was adopted over a number of dissenting votes.24 Furthermore, the order as a whole was adopted over the dissenting vote, and dissenting opinion of Judge Donoghue.25 She observed that [t]he measures imposed by the Court today include, inter alia, restrictions on the military forces of both Parties that extend beyond areas at issue in the main Article 60 case, by encompassing areas unquestionably belonging to one of the Parties within the “provisional exclusion zone” and by including in that zone the Temple of Preah Vihear itself, which both Parties recognize to belong to Cambodia. I do not see the jurisdictional basis for such expansive measures and the Court offers none.26

23 24

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See Order of 18 July 2011, ICJ Reports 2011, pp. 552–554, paras. 61–64, and the map attached. As President Owada pointed out during the 23 September Conference, provision for such a zone is not as such beyond the Court’s powers under Article 41 of the Statute, if it is necessary for the protection of the respective rights of the parties: the rights, that is to say, claimed in the Application instituting proceedings. See further his dissenting opinion: ICJ Reports 2011, p. 557. Who, as it happened, chaired the session of the September Conference at which this paper was originally presented. Dissenting Opinion of Judge Donoghue, ICJ Reports 2011, p. 614, para. 4.

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Essentially, Judge Donoghue’s point, as I understand it, was one that I have mentioned: that the Court’s power to indicate provisional measures is directed to preserving ‘the respective rights’ of either party; and that means the rights in dispute in the proceedings, not rights ‘at large’—however sacred in themselves. In the interpretation proceedings, all that was in dispute was the meaning of certain passages in the 1962 judgment. The parties were certainly involved in a dangerous confrontation arising out of, or connected with, that dispute; but that confrontation was, in Judge Donoghue’s view, outside the jurisdiction presently available to the Court.27 Nor did the Court’s order rely (or at least not rely specifically) on the power of the Court to indicate measures to prevent the aggravation or extension of the dispute.28 It is interesting that, as Judge Donoghue notes in the passage quoted above, the Court’s order does not contain any express refutation of her argument as to lack of jurisdiction;29 yet the majority of the Court went ahead and indicated measures that appear to go well beyond what was entailed in the main proceedings—the interpretation of the 1962 judgment. If the Court possessed powers analogous to those of the Security Council, and was not trammelled by the veto, the 2011 order, including the prescription of a demilitarised zone, is one which could be praised as a wise measure to secure at least temporary peace, and avoid, in particular, loss of life. But that is of course not directly the function of the Court: it is a court of justice only. Should it nevertheless be ready, when there are hostilities in course or threatened between parties to a case before it, to consider that anything which contributes directly to ensuring and maintaining peace is within the ambit of the Court’s powers? One approach to the matter expressed at the September conference was that of Judge Bennouna, whose comment, towards its close, on the views I had there expressed was as follows:

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Cf. the observations of Judge Cançado Trindade, in his separate opinion appended to the decision on the merits, on the relevance of the ‘factual context’: Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cançado Trindade, para. 34. At the Conference, former Judge Vereshchetin drew attention to this power as showing that, in his view, the limits of the Court’s power to indicate measures are less strict than I had been suggesting. Even at the jurisdiction or merits stage of a case, the Court does not always feel called upon to reply specifically in its decision to arguments presented by dissenting judges; still less is this considered a requirement under the pressure of time normal in provisional measures proceedings.

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Je dois dire que nous ne voyons pas, depuis la Cour, les choses de la même façon. Nous ne sommes pas en train de rentrer dans les technicités. Nous essayons de faire face à une situation : lorsque nous voyons qu’une affaire arrive à nous, [et] qu’il y a eu des incidents militaires qui ont précédé cette affaire, nous ne pouvons pas accepter que ces incidents militaires continuent, au risque de mettre en cause les droits qui seront traités dans notre propre procédure.30 As a general statement of judicial policy, this is admirable; but the problem in the Temple (Interpretation) case was that the rights to be declared in the future judgment were those deriving from the 1962 judgment, and thus not capable of being ‘mis en cause’ by armed activities. A marked difference between the Temple (Interpretation) case and straightforward boundary disputes, e.g., the Frontier Dispute case mentioned above, is that while both cases could be said loosely to involve the definition of a frontier, the Court in 2011 was concerned with the situation as it had been in 1962. As already noted, armed activities around an established international frontier cannot modify or affect the position of that frontier. They might in some circumstances affect matters of proof (e.g. expulsion of population whose evidence might be relevant, destruction of boundary markers, etc.), but the question before the Court in the proceedings for interpretation of the Temple decision were concerned with a situation historically frozen in 1962. Still less could any activities, armed or otherwise, in 2013 affect that situation. The binding quality of provisional measures is something that has only been declared since 2001 and the LaGrand judgment; that fact too has a certain relevance. When the legal effect of provisional measures was widely thought to be merely recommendatory, the Court might have felt more free to go, in the interests of peace, beyond the narrow confines of the rights asserted; but it did not. Further, as Judge Donoghue observed in her opinion, [t]hose who are frustrated by the Court’s consent-based system of jurisdiction may welcome this combination of enduring Article 60 jurisdiction and binding provisional measures as a new-found tool whereby the Court can protect human lives and property.31 I would comment that it is not only outside the Court that that frustration may have been felt. But do the advantages seen in this ‘new-found tool’ justify 30 31

Verbatim transcript supplied by the ICJ Registry, punctuation slightly modified. Dissenting Opinion of Judge Donoghue, ICJ Reports 2011, pp. 623–624, para. 28.

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its unexpected existence, justify treating it as, in effect, an enlargement of jurisdiction? When the original version of this paper was presented, the Court had not yet given judgment on the request for interpretation itself; that judgment was delivered on 11 November 2013. In that decision it did not comment on the provisional measures it had indicated; since measures are indicated pending the decision in the main case, it is generally recognised that they lapse, or are replaced, when that decision is given, and the Court has in the past sometimes stated this specifically in the final decision.32 It was not argued, as it had been in the Avena (Interpretation) case, that there had been breaches of the order, and that the Court should sanction these in its judgment.33 Geographically speaking, there is little discrepancy between the extent of the ‘provisional demilitarised zone’ indicated in the order and the territorial entitlement of Cambodia under the 1962 judgment as interpreted by the 2013 judgment: the lines defining that zone are straight lines, but where relevant they do approximately follow the contours of the ‘promontory of Preah Vihear’, found to appertain to Cambodia under the 1962 decision.34 However, the order directed not only Thailand, but also Cambodia, to “withdraw all military 32 See Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, ICJ Reports 1952, p. 114, where the Court had found that it had no jurisdiction. In the Avena case, the Court found that the obligations under the order indicating provisional measures “are, with effect from the date of the present Judgment, replaced by those declared in this Judgment”: Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 70, para. 152. 33 See Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, ICJ Reports 2009, p. 19, para. 51; and the dissent on this point of Judge Abraham, ibid., p. 28. 34 The sketch-map attached to the Order of 18 July 2011 (ICJ Reports 2011, p. 553) shows the Provisional Demilitarised Zone as containing the promontory on which the Temple stands (promontory of Preah Vihear proper), and extending on the western side to another eminence or promontory, which is not named on the map but is known as Phnom Trap: see paras. 83, 89, 92 ff. of the 2013 judgment. Cambodia’s contention (which appears to be correct) was that the line on the Annex 1 Map (reproduced in the Pleadings volumes of the 1962 Temple case) leaves this area also to Cambodia. In 2013 the Court found that this hill nevertheless did not form part of the ‘vicinity’ of the Temple, referred to in the operative clause of the 1962 judgment; in this respect the 2011 Provisional Demilitarised Zone turns out to go beyond the scope of the 1962 decision. However, in view of its apparent conformity with the Annex 1 Map, the inclusion of Phnom Trap in the Zone defined by the 2011 Order was reasonable enough on the preliminary view of the case that was possible on a request for provisional measures.

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personnel” and to “refrain [. . .] from any military presence” there.35 Clearly this directive, as regards Thailand, became simply incorporated in an obligation of Thailand to respect the sovereignty of Cambodia over the area, but as regards Cambodia it became inconsistent with such sovereignty, and must have lapsed. For our purposes however, one comment by Judge Cançado Trindade in his separate opinion appended to the decision on the merits bears noticing: he stated that [i]n all likelihood the request for interpretation would not have been lodged with the Court if the aforementioned armed hostilities between Thailand and Cambodia had not occurred. Such armed hostilities form the factual context which originated the request for interpretation as well as the request for provisional measures of protection, and rendered necessary the adoption of those measures by the Court.36 The circumstances that induce a party to seek an interpretation of a judgment are not however to be confused with the subject-matter of the request for interpretation, so as to enlarge the scope of the jurisdiction conferred by Article 60. This concept of the ‘factual context’ is apparently presented as being something from which the Court may derive powers to indicate measures not falling strictly within the four corners of the claim submitted to it. It resembles the approach stated by Judge Bennouna in the discussion, and quoted above, though Judge Bennouna linked the armed activities to the rights claimed insofar as the former might ‘mettre en cause les droits qui seront traités’ in the ultimate decision. The general question, arising out of the Temple (Interpretation) case in particular, is this: to what extent, if at all, should considerations of the prevention of hostilities or of loss of life be taken into account on a request for the indication of provisional measures, and how should they be weighed against considerations of jurisdiction and of any limitation of the rights that are being claimed?37 To put the point another way: let us suppose that in the Temple 35 36 37

Order of 18 July 2011, ICJ Reports 2011, p. 554, para. 63. Separate Opinion of Judge Cançado Trindade, para. 34. Although measures are normally contemplated on the basis of a request by a party, which it is for that party to justify, in its Rules the Court has reserved the possibility of examining the desirability of such measures proprio motu. The current Rules were adopted in 1978, but the 1946 Rules, in force at the time of the meeting in 1971, mentioned above, similarly provided that “[t]he Court may indicate interim measures of protection proprio motu”: Article 61, para. 6.

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(Interpretation) case a majority of the Court had taken the same view as Judge Donoghue; but let us suppose also that there was an even more serious risk of military confrontation, hostilities and loss of life, than in fact there was. To what extent, if at all, would the Court have been justified in indicating measures to try to check these developments, despite the extremely limited nature of its jurisdiction? Could it in that event invoke the considerations to which Judge Ranjeva drew attention in 1996, that the Court could and should make “a contribution [. . .] to ensuring the observance of one of the principal obligations of the United Nations and of all its organs in relation to the maintenance of international peace and security”?38 Should it strive in every way to preserve human lives? Judge Ranjeva, it seems, would take this course. Judge Oda, we may suppose, on the basis of his remarks in 1996, would have no hesitation in denying measures.39 The choice in cases of the kind I have been considering may thus be seen as between ‘The Court in the Service of Peace and Justice’, and ‘The Court in the Service of Peace through Justice’. It may also be seen as one between strict constructionism, with Judge Oda; or flexibility with Judge Ranjeva. The latter often looks more attractive, particularly when possibly irrevocable acts are involved, and lives may be at stake. May I however conclude by recalling a celebrated literary precedent, a court case in which a human life was at stake, and an appeal was made to flexibility in these terms: ‘To do a great right, do a little wrong’. Is that sound advice to a court? The court in the case in question rejected this approach, adopting the view expressed by its amicus curiae to this effect: It must not be . . . ’Twill be recorded for a precedent, And many an error by the same example Will rush into the state,—it cannot be.40 The report of the case will be found in Shakespeare’s The Merchant of Venice, Act IV, Scene 1. 38 39

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Declaration of Judge Ranjeva, ICJ Reports 1996, p. 29. Unless, as in the Breard and initial LaGrand orders, while he would have refused the indication of measures, he reluctantly went along with his colleagues from what appear to be motives of solidarity: see Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, ICJ Reports 1998, pp. 260–262. This precedent was expressly followed by Russell L.J. in the English Court of Appeal in 1967: see Sydall v. Castings Ltd. [1967] 1 Q.B. 302 at 321.

chapter 6

Preventing Conflicts between the Court’s Orders on Provisional Measures and Security Council Resolutions Giorgio Gaja

Possible Conflicts between the Court’s Orders on Provisional Measures and Security Council Resolutions

When the Court is seized of a dispute which overlaps with a dispute submitted to the Security Council, the Court will only examine its legal aspects. As stated by the Court in its first judgment in Military and Paramilitary Activities in and against Nicaragua, [t]he Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same dispute.1 The distinction between judicial and political functions may not always be easy to trace. Moreover, a distinction between the respective functions of the Court and the Security Council cannot avert the risk of a conflict between a judicial decision and a Security Council resolution. There may be a duty for the two organs to cooperate with each other, but this does not go further than taking the activities and functions of the other organ into consideration.2 This type of conflict may occur also when the Court’s decision is an order on provisional measures. What the Court decides in view of preserving the rights of the parties to the dispute may not be in harmony with what the political * Judge at the International Court of Justice. 1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 435, para. 95. 2 See Eckart Klein, “Paralleles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof bei friedensbedrohenden Streitigkeiten,” in Völkerrecht als Rechtsordnung—Internationale Gerichtsbarkeit—Menschenrechte: Festschrift für Hermann Mosler, ed. Rudolf Bernhardt et al. (Berlin/Heidelberg/New York: Springer, 1983), 482.

© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004278561_�07

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organ finds expedient for the maintenance of peace. The risk of a conflict is likely to be greater when the Security Council bases its resolution on an assessment of legal issues or when the Court, as it did in its order relating to the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand),3 makes an expansive appraisal of its power to indicate provisional measures. If one considers the conflicts that may arise from the perspective of the parties to the dispute, they may be facing on the one hand an obligation under a Court’s order and, on the other hand, a diverging recommendation or decision by the Security Council. If the Security Council resolution consists of a recommendation, the conflict will not be between legal obligations. Thus the States parties to the dispute will only be under an obligation to comply with the Court’s order. However, when a recommendation is based on Chapter VII of the UN Charter, one may argue that it should nevertheless prevail in order to allow the Security Council to fulfil its primary responsibility for the maintenance of peace.4 In the presence of one of the conditions set out in Article 39 of the Charter, the Security Council could thus take the measures that it deems appropriate without necessarily having to resort to a binding decision. Should the Security Council adopt a decision, the States parties to the dispute could face conflicting obligations. In this case, the primacy of the Security Council resolution would rest on firmer ground. The respective timing of the Court’s order and the Security Council resolution does not appear to provide a criterion for determining whether the order or the resolution should prevail. The fact that one of the two organs adopts a measure after the other one may only have some practical consequences, because it may induce the body coming second not to affect what has already been adopted by the other body. However, this is not necessarily the case. The Court may consider that only an order stating a conflicting obligation would provide an adequate protection for the rights under dispute, while the Security Council may find that some political aspects of the dispute require the adoption of conflicting measures. 3 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, ICJ Reports 2011, p. 537. 4 This seems to be the position taken by Alain Pellet, “The International Court of Justice and the Political Organs of the United Nations: Some Further but Cursory Remarks,” in Il ruolo del giudice internazionale nell’evoluzione del diritto internazionale e comunitario, ed. Francesco Salerno (Padua: CEDAM, 1995), 119. No distinction was made between measures adopted by the Security Council through a decision and those adopted through a recommendation.

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In the present analysis I assume that both the Court and the Security Council act within the limits of their respective powers and that therefore no question of the legality of the Court’s decision or of the Security Council resolution arises.

Practice Concerning Cases of Parallel Examination of a Dispute

Practice so far has shown a tendency on the part of both the Court and the Security Council to avoid creating conflicts. In the Aegean Sea Continental Shelf (Greece v. Turkey) case the Court found that “the circumstances [. . . were] not such as to require the exercise of its power under Article 41 of the Statute to indicate interim measures of protection”.5 The Court took note of Security Council resolution 395 (1976) and of the positive reactions to this resolution by the parties to the dispute in order to conclude that there was no need to ascertain whether it had “the power to indicate interim measures of protection for the sole purpose of preventing the aggravation or extension of a dispute”.6 The adoption of measures by the Security Council was regarded as affecting the presence of one of the requirements set out in the Court’s jurisprudence concerning interim measures of protection, namely the risk of irreparable damage. A resolution adopted by the Security Council may have a similar impact in other cases.7 In the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), the Court found again that “the circumstances of the case [were] not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”.8 This time the Court considered that the Security Council resolution affected the presence of 5 Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 14, para. 46. 6 Ibid., pp. 12–13, paras. 37–42. 7 This point was stressed by Robert Kolb, The International Court of Justice (Oxford/Portland, Or.: Hart, 2013), 652–653; Karin Oellers-Frahm, “Article 41,” in The Statute of the International Court of Justice—A Commentary, ed. Andreas Zimmermann et al., 2nd edition (Oxford: Oxford University Press, 2012), 1069; and Maria I. Papa, I rapporti tra la Corte internazionale di giustizia e il Consiglio di sicurezza (Padua: CEDAM, 2006), 230. 8 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 127, para. 46. The same conclusion was reached in the parallel case brought against the United Kingdom.

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the rights the protection of which was requested by one of the parties. In the language later adopted by the Court, there were no longer any plausible rights. The Court noted that, after Security Council resolution 748 (1992) had decided that two Libyan nationals had to be surrendered for trial, “in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail[ed] over their obligations under any other international agreement, including the Montreal Convention” and that “the rights claimed by Libya under the Montreal Convention [could not then] be regarded as appropriate for protection by the indication of provisional measures”.9 Also the Court’s order in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) accorded great weight to a resolution that had been adopted by the Security Council. The Court stated that “[b]oth Parties must, forthwith, take all measures necessary to comply [. . .] with United Nations Security Council resolution 1304 (2000) of 16 June 2000”.10 However, in this order the Court added some further obligations for the parties to the dispute, in particular that of taking “all measures necessary to ensure full respect within the zone of conflict for fundamental human rights and for the applicable provisions of humanitarian law”.11 These measures could hardly be regarded as conflicting with those listed in the Security Council resolution. The foregoing examples concern cases where the Court refrained from indicating interim measures in view of the action taken by the Security Council in relation to the same dispute. While it would be difficult to find examples of Security Council resolutions which state that the Council refrained from adopting measures because of an order made by the Court, there are cases in which the Court’s order clearly appeared to be one of the reasons for this. For instance, with regard to the situation in Bosnia and Herzegovina, the Security Council took note in the preamble of its resolution of the measures adopted by the Court in its first order on provisional measures in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))12 and added some consistent, more specific measures. 9 10

Ibid., pp. 126–127, paras. 42–43. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, ICJ Reports 2000, p. 129, para. 47. 11 Ibid. 12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, p. 24, para. 52.

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In the case of the dispute between Cambodia and Thailand over the interpretation of the judgment concerning the Temple of Preah Vihear, the Security Council only issued a press statement which “called on the two sides to display maximum restraint and avoid any action that may aggravate the situation” and “further urged the parties to establish a permanent ceasefire”.13 The subsequent establishment by the Court’s order of a “provisional demilitarized zone” extending well beyond the Temple area14 may explain why the Council did not find it necessary to take any further steps with regard to the dispute. All the cases considered above provide examples of one organ not interfering with the measures adopted by the other organ. However, the principle ‘first come first served’ may not always work out satisfactorily. The organ intervening later may perceive the need for conflicting measures. This may be due to the fact that the need for those measures may arise after the first measures have been adopted.

The Prospect of Enhanced Cooperation

In order to prevent conflicts, the strengthening of cooperation between the Court and the Security Council would be helpful. According to Article 41, paragraph 2, of the Court’s Statute, once provisional measures are adopted, “notice of the measures suggested shall forthwith be given to the parties and to the Security Council”. Article 77 of the Rules only adds that the measures “shall forthwith be communicated to the Secretary-General of the United Nations for transmission to the Security Council in pursuance of Article 41, paragraph 2, of the Statute”. Nothing is said either in the Statute or in the Rules about what could be the follow-up of this communication. In the aftermath of the order in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) case,15 the then President of the Court, Judge Owada, raised the question of enhancing cooperation between the Court and the Security Council with regard to various matters, including provisional measures. President Owada said: Notwithstanding the difference in the actions taken by the two organs due to the different functions to be played by them respectively, the 13 SC/10174 of 14 February 2011. 14 Order of 18 July 2011, ICJ Reports 2011, p. 555, para. 69. 15 Ibid.

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case demonstrates the importance of maintaining an organic link of coordination and co-operation between us[,] the two principal organs of the United Nations, working in the field of preservation of peace and stability. A greater understanding by the Security Council of the potential of the International Court of Justice and a greater degree of such organic co-operation in this field, including an effective use of Article 36, paragraph 3, and Article 94, paragraph 2, of the Charter, will, in my humble submission, prove to be extremely useful. This would contribute greatly in enabling the Court to carry out its effective judicial resolution of the disputes in international relations.16 In order to enhance cooperation between the two organs, the most effective method would be the conclusion of an inter-organic agreement or arrangement. Limiting the examination of this possible development to the subject of the present paper, the aim would be to provide for an opportunity for each organ to suggest that the measures adopted by the other organ be reconsidered in the light of its observations. The conclusion of such an inter-organic agreement or arrangement may seem an unusual step. However, provided that the integrity of the Court’s judicial function is preserved, this step should not raise major objections. Whether an inter-organic agreement or arrangement is concluded or not, the Rules of the Court could be amended in order to provide the Security Council with an opportunity to request the reconsideration of those aspects of an order on provisional measures that cause concern for the maintenance of peace and security. This seems a reasonable consequence of the role that Article 41, paragraph 2, of the Statute foresees for the Security Council by requiring that “notice of the measures [. . .] be given [. . .] to the Security Council”. In order to preserve the integrity of the Court’s judicial function, the suggested procedure should give the parties to the dispute an opportunity to express their observations on the Council’s request.

16

Statement by H.E. Judge Hisashi Owada, President of the International Court of Justice, to the Security Council, 25 October 2011.

chapter 7

Act-dependent Judicial Review of Security Council and General Assembly Resolutions Rosa Möhrlein Introduction The purpose of this contribution is to examine the role of the International Court of Justice with regard to the judicial review of three categories of General Assembly and Security Council resolutions. The three categories for which the role of the Court is examined are resolutions adopted not in accordance with the prescribed procedure, resolutions adopted on the basis of a power not expressed in the United Nations Charter and resolutions adopted on the basis of a discretionary power.1 By means of an analysis of advisory opinions and judgments of the Court, it will be explored what kind of role the Court has actually played in the past, how we can qualify this role and what standard of review (if any) the Court adopted. The hypothesis is that the extent of judicial review and the level of scrutiny depend on the type of resolution adopted by the political organs of the United Nations. * Lecturer and researcher at the Law Faculty of the Radboud University Nijmegen. I would like to thank the International Court of Justice for giving me the opportunity to present an earlier version of this paper at the Conference on the occasion of the Centenary of the Peace Palace. The remarks that have been made in reaction to my speech have been very useful. I would also like to thank Dr. E. Rieter for her suggestions for improvement of this contribution. 1 These categories have been mentioned by Jan Klabbers, An Introduction to International Institutional Law (Cambridge: Cambridge University Press, 2009), 215. Klabbers has identified these types of resolutions based on a combination of potentially unlawful acts considered by Lauterpacht and fields where questions of legality could arise as analysed by Morgenstern. See Elihu Lauterpacht, “The Legal Effect of Illegal Acts of International Organisations,” in Cambridge Essays in International Law: Essays in Honour of Lord McNair, ed. Derek W. Bowett et al. (New York: Oceana, 1965), 89 and Felice Morgenstern, “Legality in International Organisations,” British Year Book of International Law 48 (1976–1977): 241–80. The formulation used by Klabbers is slightly different, namely: instruments adopted not in accordance with the prescribed procedure, by an organ lacking the requisite power to adopt the measure in question, and the improper exercise of a discretionary power.

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The categorisation selected for this paper does not pretend to be an exhaustive overview of the resolutions that can be adopted or a mutually exclusive framework, but it could lead to more extensive research on the categorisation of General Assembly and Security Council resolutions for analysing the role of the Court with respect to judicial review.

The Concept of Judicial Review

When discussing judicial review, authors have come to different conclusions with regard to the question whether the ICJ can review resolutions adopted by the General Assembly and the Security Council.2 This is not surprising since the conclusions depend on what a particular author understands by the concept of judicial review.3 As José E. Alvarez has put it: “it is wrong to assume that we will know ‘judicial review’ when we see it, that all define ‘judicial review’ the same way”.4 For some authors, judicial review means that the Court can ‘invalidate’, ‘strike down’ or declare ultra vires resolutions of the Security Council and the General Assembly.5 Put this way, judicial review is understood as judicial, ‘constitutional’ control over the resolutions of United Nations organs.6 For other authors, however, judicial review is defined as the possibility for the Court to 2 For an overview of relevant literature on this topic see Robert Kolb, The International Court of Justice (Oxford: Hart Publishing, 2013), 879. 3 See for a similar finding Bernd Martenczuk, “The Security Council, the International Court of Justice and Judicial Review: What Lessons from Lockerbie?,” European Journal of International Law 10 (1999): 526–27. 4 José E. Alvarez, “Judging the Security Council,” American Journal of International Law 90 (1996): 7. 5 Babback Sabahi, “The ICJ’s Authority to Invalidate the Security Council’s Decisions under Chapter VII: Legal Romanticism or the Rule of Law?,” New York International Law Review 17 (2004): 1. Although General Assembly resolutions are recommendations, they can likewise be subject of judicial review since they may have highly important legal effects. See Kolb, The International Court of Justice, 908. 6 I would like to thank Judge Owada for drawing my attention to a recent document of the Institute of International Law: “Judicial Control of Security Council Decisions,” in Annuaire de l‘Institut de Droit International, Rapporteur Rüdiger Wolfrum, Tokyo Session, Draft Works, http://www.idi-iil.org/idiE/annuaireE/2013/Question1_Wolfrum.pdf (accessed February 20, 2014). See also Mohammed Bedjaoui, The New World Order and the Security Council (Dordrecht: Martinus Nijhoff, 1994), 21; Enzo Cannizzaro, “A Machiavellian Moment? The UN Security Council and the Rule of Law,” International Organizations Law Review 3 (2006): 192, and Mohamed Sameh M. Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer Law International, 2003), 290.

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interpret resolutions of the political organs and to determine the legal effects that flow from them, without the Court necessarily declaring them invalid.7 For the purpose of this paper, the focus will be on the interpreting function of the Court, instead of on the strictly legal, controlling function.8 This choice is based on the consideration that judicial review performed by the ICJ cannot be equated to judicial review in national legal orders.9 A focus on the possibility for the Court to declare resolutions of the political organs of the United Nations to be ultra vires would therefore not necessarily contribute to a clearer understanding of the role of the Court. Moreover, the concept of judicial review adopted here fits better into the underlying principle of cooperation between the principal organs of the UN.10

Judicial Review by the Court with Regard to Specific Categories of Resolutions



Resolutions Adopted not in Accordance with the Prescribed Procedure

On several occasions the Court has dealt with allegations that resolutions adopted by the General Assembly or the Security Council were ultra vires due to procedural irregularities. The Namibia Case Because objections had been made to the validity of the Council resolution asking the Court for an advisory opinion, the Court in the Namibia case11 needed to consider whether the specific resolution had been lawfully adopted, 7

See for example Martenczuk, “The Security Council, the International Court of Justice and Judicial Review,” 526. 8 Lauterpacht has stated that international law as such does not possess a totally controlling element. According to him, despite this fact, law is still valuable, as long as we are aware of its shortcomings. See Elihu Lauterpacht, “The Development of the Law of International Organizations by the Decisions of International Tribunals,” Recueil des Cours 152 (1976): 381, 392. In the same vein, judicial review by the ICJ is not a controlling element, as it is in national legal orders, but nonetheless it can be very valuable, as long as we remain aware of the shortcomings. 9 See for example Alvarez, “Judging the Security Council,” 4–5. 10 Kolb, The International Court of Justice, 896. 11 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16.

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in particular whether abstentions could be interpreted as ‘concurring’ votes in the sense of Article 27, paragraph 3, of the United Nations Charter. Before examining the particular resolution, the Court pointed to a presumption of validity, formulated as follows: A resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted.12 The formulation of this presumption did not lead the Court to conclude that it could not review the legality of the resolution.13 On the contrary, it led the Court to conclude that it could examine the procedural requirements and thus the procedural validity of the Security Council resolution. The Court looked at Article 27, paragraph 3, of the UN Charter, which con­ stitutes one of the rules of procedure for the Council. However, at the same time, the Court considered what it called the ‘general practice’ of the Council, which was to treat an abstention as a concurring vote.14 According to the Court, the general practice of the Council and the fact that the member States had also generally accepted this practice sufficed to come to the conclusion that the resolution was validly adopted. While the presumption of validity implies a deferential standard of review,15 the Court nevertheless considered it to be its task to check the procedural validity of the resolution. However, in interpreting the required procedure for the adoption of the resolution, the Court took into account the practice of the Council, thereby attaching weight to the interpretation by the Council itself and thus in the end adopting a fairly deferential standard of review. The Wall Opinion Similar to the Namibia case, one of the questions in the Wall opinion16 was whether the resolution asking for an advisory opinion from the Court, this

12 Ibid., p. 22, para. 20. 13 Kolb, The International Court of Justice, 902. 14 Advisory Opinion, ICJ Reports 1971, p. 22, para. 22. 15 On the question whether the presumption of validity is really part of the standard of review see Martenczuk, “The Security Council, the International Court of Justice and Judicial Review,” 539. 16 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136.

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time requested by the General Assembly, was lawfully adopted.17 The Court, without addressing the question whether it was competent to determine the validity of the Assembly’s resolution, immediately turned to the interpretation of Article 12 UNC and found that the Assembly had not contravened the provisions of said article, because a request for an advisory opinion did not constitute a recommendation in the sense of Article 12, paragraph 1.18 The Court concluded that, through accepted practice of the Assembly, the Assembly was not barred from discussing items (and even making recommendations with regard to those topics) that are dealt with by the Council at the same time.19 Thus, the Court focused on the practice of the organ, thereby giving priority to the interpretation of the provision by the Assembly itself, and in effect departing from the textual meaning of Article 12.20 After the examination of the procedural aspects of the resolution, the Court put forward the presumption of validity, formulated by the Court in the previously mentioned Namibia case.21 Subsequently, the Court concluded that there were no reasons “in the present case” to rebut that presumption.22 Remarkably, the Court referred here to the presumption of validity after it had already examined the procedural issues of the Assembly resolution, whereas in the Namibia case, the Court first referred to the presumption of validity and then proceeded with the evaluation of the resolution. One could be tempted to think that by referring to the presumption only after examining the procedural validity of the resolution, the Court implicitly indicated that it had the power to exercise this form of judicial review, without questioning it first. The Court has demonstrated its willingness to rely on the previous practice of the organs in the interpretation of procedural rules. According to Sloan and Hernández, the reliance of the Court on the practice of the organs could point to its reluctance to retrospectively pronounce on the ultra vires character of a resolution adopted by an organ.23 17

A similar question was dealt with in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403. 18 Advisory Opinion, ICJ Reports 2004, pp. 148–150, paras. 25–28. 19 Ibid., p. 150, para. 28. 20 The Court assumed that this practice was uncontested. See James Sloan and Gleider I. Hernández, “The Role of the International Court of Justice in the Development of the Institutional Law of the United Nations,” in The Development of International Law by the International Court of Justice, ed. Christian J. Tams and James Sloan (Oxford: Oxford University Press, 2013), 216. 21 Advisory Opinion, ICJ Reports 2004, p. 152, para. 35. 22 Ibid. 23 Sloan and Hernández, “The Role of the International Court of Justice,” 210.

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A possible reason for the Court to approve the departure by the organs from the wording of the UN Charter provisions can be discerned from the judgment on the Appeal Relating to the Jurisdiction of the ICAO Council. Here the Court stated that procedural irregularities, if not prejudicing “in any fundamental way the requirements of a just procedure”, do not result in invalidating the act in question.24 Perhaps the Court considered that the practice of the organs did not prejudice the requirements in a fundamental way, leading the Court to conclude that the resolutions were adopted in accordance with the prescribed procedure. The Second Admissions Case The Court has also been willing to engage in direct review of a procedural question at the request of the General Assembly. In the Second Admissions case,25 this question was hypothetical since the Assembly had not yet adopted a resolution, but had first asked the Court whether it could take the decision to admit a new member to the Organization without the recommendation of the Council. Besides looking at the text of Article 4, paragraph 2, of the UN Charter, the Court relied again on the practice of the organs, stating that both the Assembly and the Council had “consistently interpreted” the Charter in a way that the recommendation of the Council was a necessary precondition26 and that the Assembly could not admit a new member State without the Council’s recommendation. Otherwise, this would constitute a nullification of the role of the Council.27 The Court did not put forward a presumption of validity here. It was precisely the object of the request of the Assembly whether it could pursue the proposed procedure and the Assembly had explicitly asked the Court to examine Article 4, paragraph 2. Instead, the Court indicated that there are certainly limits for the Assembly to act, especially if this would nullify the role of the Council. Since no resolution had yet been adopted, and the Court was specifi24

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, ICJ Reports 1972, pp. 69–70, para. 45. It should be kept in mind that the Court came to this statement in a case about a specialised agency of the United Nations, which means that this conclusion cannot as such be transposed to cases about the principal organs of the UN. 25 Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, ICJ Reports 1950, p. 4. 26 Ibid., p. 9. 27 Ibid.

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cally asked to interpret the relevant provision, the Court could pay due regard to the balance of power between the two political organs and indicate that the Assembly could not act without the necessary recommendation from the Council, thereby restricting the Assembly’s freedom of action.28

Resolutions Adopted on the Basis of a Power not Expressed in the Charter

This section concerns certain General Assembly resolutions which have been challenged on the basis that the power for the Assembly to adopt such resolutions was not provided for in the Charter and that accordingly, the Assembly would not be competent to adopt those resolutions. Security Council resolutions will be discussed in the subsequent section, since it is assumed that the Council enjoys a certain area of discretion in adopting resolutions. The Effect of Awards Case Remarkable about the Effect of Awards case29 is the fact that the Court did not address the question of its competence to assess the legality of the resolution establishing the Administrative Tribunal. Because the legal power of the General Assembly to establish a tribunal competent to render judgments binding on the UN had been challenged, the Court considered it necessary to examine the power of the Assembly. First, the Court acknowledged that, although there was no express provision in the Charter for the General Assembly to establish a judicial organ, the Assembly could establish such an organ on the basis of implied powers.30 The Court has taken a liberal approach with regard to implied powers.31 The Court put an emphasis on the aim of the Assembly to pursue justice as between the Organization and the staff members. It considered the establishment of the Tribunal to be essential to ensure the efficient working of the Secretariat, thus adopting a teleological approach.32 Second, the Court stated that “[t]he precise nature and scope of the measures by which the power of creating a tribunal was to be exercised, was a

28 29 30 31 32

Sloan and Hernández, “The Role of the International Court of Justice,” 210. Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion, ICJ Reports 1954, p. 47. Ibid., pp. 56–57. Sloan and Hernández, “The Role of the International Court of Justice,” 207. Alvarez, “Judging the Security Council,” 26.

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matter for determination by the General Assembly alone”,33 thereby granting the Assembly discretion in choosing measures it would need to guarantee the proper functioning of the Organization.34 While leaving a margin of discretion to the Assembly to choose appropriate measures, the Court at the same time pointed to the limits of the Assembly with regard to the implied power it has under the Charter, namely the impossibility for the Assembly to reverse a decision of the Tribunal.35 The Certain Expenses Case In response to the objection by some States to the Court’s consideration of the question whether the expenditures incurred by the General Assembly for the peacekeeping operation in the Middle East were in conformity with the Charter, the Court stated in the Certain Expenses case36 that it was at liberty to consider all relevant data available and to take into consideration all the provisions contained in the Charter.37 The Court thus confirmed its broad competence in the context of advisory opinions. Although the Court claimed that it was not looking at the validity as such of the resolutions adopted by the Assembly to authorise the peacekeeping operation,38 it still examined whether the Assembly had the power to authorise the Secretary-General to establish peacekeeping operations. After indicating that the Assembly had the power to organise peacekeeping operations at the request, or with the consent, of the States concerned,39 the Court set forth a presumption of validity, albeit a different one than previously mentioned, namely: “when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires that Organization”.40 The Court then proceeded with its much-quoted statement that there is no procedure of judicial review analogous to the procedure found in some national legal orders. Instead, all UN organs should, “in the first place at 33 34

35 36 37 38 39 40

Advisory Opinion, ICJ Reports 1954, p. 58. See Vera Gowlland-Debbas, “The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case,” American Journal of International Law 88 (1994): 671. Sloan and Hernández, “The Role of the International Court of Justice,” 212. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, p. 151. Ibid., p. 157. Ibid., p. 156. Ibid., p. 164. Ibid., p. 168.

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least”, determine their own jurisdiction.41 This statement demonstrated the willingness of the Court to give considerable weight to the interpretation of powers by the organ itself,42 while at the same time preserving for itself the power to examine the resolutions. The Court took this statement as a starting point and only analysed whether the peacekeeping operation established by the Assembly was to be considered ‘enforcement action’ which would clearly fall within the scope of functions of the Security Council. The Court concluded that there was no evidence that the forces were established for the purposes of enforcement.43 What the Court in fact did was to interpret the relationship between the Council and the Assembly and in addition, to assess whether the expenses were incurred for the achievement of the purposes of the Organization, thereby demonstrating a broad understanding of the Organization’s purposes.44 Whereas this examination of the respective functions and powers of the Council and the Assembly was not strictly necessary for answering the question (the Court had already stated that in case the Assembly had adopted a resolution that could only be taken by the Council, this would still require member States to pay for the expenses incurred),45 the Court considered that it wished to address the arguments put forward in the proceedings, again confirming its powers of judicial review as a consequence of the objections that had been made. The fact that a different presumption has been put forward confirms that different standards of review can be adopted depending on the type of resolutions that are at stake. The test for the presumption in this category is a more substantive test than the test applied for procedural irregularities,46 and requires the Court to consider the resolutions against the purposes of the Organization. By referring to this presumption the Court has adopted a deferential standard of review, especially in light of the broad approach adopted by the Court with regard to the purposes of the Organization. This makes it unlikely that the Court will ever declare that a resolution was not adopted for the fulfilment of the purposes, although the Court would be at liberty to indicate certain limits to the power of the Assembly. 41 Ibid. 42 Sloan and Hernández, “The Role of the International Court of Justice,” 207. 43 Advisory Opinion, ICJ Reports 1962, pp. 171–72. 44 Sloan and Hernández, “The Role of the International Court of Justice,” 207. 45 Advisory Opinion, ICJ Reports 1962, pp. 168–70. 46 Gowlland-Debbas has referred to the Court making the distinction between procedural illegality and substantive illegality in the Certain Expenses case. According to her, only substantive illegality would call into question the validity of the resolution. See GowllandDebbas, “The Relationship between the International Court of Justice and the Security Council,” 672.

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The Namibia Case In the Namibia case objections had also been made to the competence of the General Assembly to adopt Resolution 2145 (XXI) which revoked the mandate given to South Africa to administer South West Africa. The Court therefore considered this question. From the structure of the case it can be concluded that the presumption of validity mentioned by the Court47 only applied to the Security Council resolution requesting the advisory opinion, and not to this particular General Assembly resolution. This would confirm that the ‘procedural’ presumption of validity only applies to procedural aspects of a resolution requesting an advisory opinion. Before addressing the question whether the resolution adopted by the Assembly was valid, the Court expressly denied having a power of judicial review, stating that “[u]ndoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned”.48 Thereafter the Court stated that the validity of the resolution was not the subject of the advisory opinion, but that it could, in the exercise of its judicial function and in the course of its reasoning, address the objections in order to determine the consequences of the resolution.49 Thus, because the legal consequences formed the direct subject of the question put before the Court and since objections had been made by States, the Court could conduct an indirect review of the resolution.50 That the Court did in fact engage in judicial review is apparent from the wording in the advisory opinion. The Court declared, for instance, that it was “examining this action of the General Assembly”.51 In no less than seventeen paragraphs did the Court examine whether the resolution adopted by the Assembly was lawful and whether the Assembly had the competence to adopt the particular resolution.52 The Court chose to test the Assembly’s resolution against general principles of treaty law, because in a previous judgment on the same situation the Court had already come to the conclusion that the mandate was “an international agreement having the character of a treaty 47 Advisory Opinion, ICJ Reports 1971, p. 22, para. 20. 48 Ibid., p. 45, para. 89. 49 Ibid. 50 See also Martenczuk, “The Security Council, the International Court of Justice and Judicial Review,” 526–27, stating that the Court has an “implicit power of judicial review” in the exercise of the judicial function when such questions arise in proceedings duly brought before the Court. 51 Advisory Opinion, ICJ Reports 1971, p. 46, para. 94 (emphasis added). 52 Ibid., pp. 45–50, paras. 87–103.

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or convention”.53 Since the Assembly had determined that a material breach had occurred, the Court came to the conclusion that the resolution had been validly adopted.54 There is reason to believe that the standard of review applied by the Court in this case has been less deferential.55 Firstly, the presumption of validity did not apply to the Assembly’s resolution. Secondly, the Court has shown its willingness in this case to test the Assembly’s conduct in a more substantial way, against international treaty law. The Court had resort to the Vienna Convention on the Law of Treaties and examined whether the Assembly had the right to terminate the ‘treaty’. The Court also concluded that to deny the power of the Assembly to end the mandate would amount to “a complete denial of remedies available against fundamental breaches of an international undertaking”.56 This last part of the sentence follows a teleological approach,57 which is in line with the approach taken by the Court in the other cases in this category and contributes to the effective functioning of the Organization.

Resolutions Adopted on the Basis of a Discretionary Power

This section addresses judicial review by the ICJ of Security Council resolutions adopted on the basis of a discretionary power. There exists a double discretion for the Council since it can make a determination under Article 39 and may, under Articles 41 or 42, determine which measures are necessary in order to restore and/or maintain international peace and security. Also under Chapter VI, the Council has some discretionary powers, for example under Article 36, paragraph 1. The question is to what extent the ICJ could assume powers of judicial review with regard to this category of resolutions.

53 54 55

56 57

Ibid., p. 47, para. 94. Ibid., pp. 46–47, paras. 94–95. McWhinney stated that the Court in this case exercised a form of judicial activism and judicial restraint at the same time. See Edward McWhinney, “The International Court as Emerging Constitutional Court and the Co-ordinate UN Institutions (Especially the Security Council): Implications of the Aerial Incident at Lockerbie,” The Canadian Yearbook of International Law 30 (1992): 261–72, particularly 262. Advisory Opinion, ICJ Reports 1971, p. 49, para. 102. Gowlland-Debbas, “The Relationship between the International Court of Justice and the Security Council,” 665–66 and Alvarez, “Judging the Security Council,” 26.

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Advisory Opinions In both the Certain Expenses and the Namibia case objections were raised to the validity of Security Council resolutions. In the Certain Expenses case the Court dealt with the question whether the choice of the Security Council to authorise the Secretary-General to determine which States would contribute to the peacekeeping operation was lawful. The ‘substantive’ presumption of validity and the statement that organs should in the first place determine their own jurisdiction that applied to the Assembly resolution also applied to the Security Council resolution authorising the Secretary-General to determine which States would contribute to the peacekeeping operation. The Court then examined whether the Council had exceeded its competences. The Court looked at a number of resolutions in which the Council had decided that the Secretary-General was bestowed with the tasks delegated by the Council. The Court found that one of those resolutions was “clearly adopted with a view to maintaining international peace and security”,58 testing the resolution against the purposes of the Organization and more specifically against the purpose of the particular organ. The Court also paid due regard to other related resolutions that had been approved unanimously or without dissenting votes. This led the Court to conclude that [i]n the light of such a record of reiterated consideration, confirmation, approval and ratification [. . .] it is impossible to reach the conclusion that the operations in question usurped or impinged upon the prerogatives conferred by the Charter on the Security Council. The Charter does not forbid the Security Council to act through instruments of its own choice.59 Thus, the Court attached importance to the fact that the practice had received approval by the member States. It emphasised the discretion of the Council to adopt measures which it deemed necessary in a particular situation. In the Namibia case, Security Council Resolution 276 was contested by South Africa. Without putting forward a presumption, the Court analysed the legal basis of Security Council Resolution 276 and concluded that Article 25 did not only apply to resolutions adopted under Chapter VII.60 The Court also indicated that for the interpretation of Security Council resolutions it would not only take into account the terms used in the resolutions, but also the dis-

58 59 60

Advisory Opinion, ICJ Reports 1962, p. 175. Ibid., pp. 176–177 (emphasis added). Advisory Opinion, ICJ Reports 1971, pp. 52–53, para. 113.

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cussions leading to it, the Charter provisions invoked and all circumstances that might assist in determining the legal consequences of the resolution.61 Considering these aspects of the resolution, the Court concluded that Resolution 276 was adopted in accordance with the purposes and principles of the Charter,62 thereby relying on a teleological interpretation. The Court adopted a contextual mode of interpretation, looking beyond the plain text of the resolution and paying more attention to its preamble, which referred to Resolution 269 (1969).63 While the Court adopted a fairly deferential standard of review with regard to Resolution 276, a number of judges issued critical dissenting opinions in which they expressed concerns about the use of the Council’s power.64 After the delivery of this advisory opinion, the Security Council in a resolution took note of and agreed with it.65 This provides a signal of the organ’s attitude towards the findings of the Court, thereby actually contributing to the development of an ‘institutional dialogue’ between the organs.66 Such dialogue could help the development of the institutional law of the UN as well as the development of international law.

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Ibid., p. 53, para. 114. Moreover, in the Kosovo advisory opinion, the Court stated that for the interpretation of Security Council resolutions it would also look at statements by representatives of members of the Council, other resolutions of the Council on the same issue and subsequent practice of relevant UN organs. See Advisory Opinion, ICJ Reports 2010, p. 442, para. 94; and Sloan and Hernández, “The Role of the International Court of Justice,” 217–18. Advisory Opinion, ICJ Reports 1971, p. 53, para. 115. Sloan and Hernández, “The Role of the International Court of Justice,” 230–31. Resolution 269 (1969) stated that the Council was mindful of “its responsibility to take necessary action to secure strict compliance with the obligations entered into by States Members of the United Nations under the provisions of Article 25 of the Charter”. See the dissenting opinion of Judge Bedjaoui, in which he referred to the Namibia case, attached to Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, Dissenting Opinion of Judge Bedjaoui, ICJ Reports 1992, p. 143. SC Res. 301 of 20 October 1971, para. 6. Or as Alvarez has stated: through individual opinions of the judges in advisory opinions an ‘expressive mode of review’ will take place in which judges will issue warnings to the Council, instead of declaring decisions void. See Alvarez, “Judging the Security Council,” 29. See also Geoffrey R. Watson, “Constitutionalism, Judicial Review, and the World Court,” Harvard International Law Journal 34 (1993): 30; and Sloan and Hernández, “The Role of the International Court of Justice,” 197–233, particularly 226.

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Contentious Cases When turning to contentious cases, it should be borne in mind that the role of the Court with regard to judicial review would probably differ from the role played in advisory opinions67 because the political organs cannot be a party to contentious proceedings.68 According to James Crawford, however, this would not necessarily be a problem. He argues that since the Court has the task of applying international law, which consists of treaties between States or rules of customary law, but also of Security Council resolutions,69 it may also examine the validity of the legal instruments invoked. According to him, “the ICJ is perfectly at liberty to assess the validity of Security Council resolutions if and when appropriate”.70 Thus, it may be said that the Court in contentious cases is not precluded from interpreting resolutions adopted by the political organs of the UN, although this review would probably always amount to indirect review.71 Moreover, it can be anticipated that judicial review by the ICJ in this category would be more sensitive than in the previously discussed category.72

67

I would like to thank the former President of the Court, Judge Bedjaoui, and Judge Greenwood for drawing my attention to this important point. 68 The Court would not have jurisdiction if a third party’s legal interests formed the subject matter of the decision. See Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, Judgment, ICJ Reports 1954, p. 19. 69 The Court stated in this respect that it “has had the occasion to interpret and apply such Security Council resolutions on a number of occasions and has consistently treated them as part of the framework of obligations under international law.” See Kosovo advisory opinion, ICJ Reports 2010, p. 439, para. 85. 70 James Crawford, “Marbury v. Madison at the International Level,” George Washington International Law Review 36 (2004): 505–14. For a similar argument, see David Schweigman, The Authority of the Security Council under Chapter VII of the United Nations Charter: Legal Limits and the Role of the International Court of Justice (Thesis, Erasmus University of Rotterdam, 2001), 270; Sloan and Hernández, “The Role of the International Court of Justice,” 224; and the dissenting opinion of Judge Skubiszewski in the Case concerning East Timor (Portugal v. Australia), Judgment, Dissenting Opinion of Judge Skubiszewski, ICJ Reports 1995, p. 251, para. 86. 71 Kolb, The International Court of Justice, 897–98. 72 Cf. ibid., p. 881.

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The Lockerbie case73 has repeatedly been referred to in the academic debate about judicial review performed by the ICJ.74 In its order on provisional measures, while pronouncing that the obligations for States under the Charter would prevail over the obligations arising from other international agreements, the Court considered that it had prima facie jurisdiction, but rejected the provisional measures requested by Libya.75 The Court did not say that it had no jurisdiction to interpret the Council resolutions in question. What is more, a number of judges in their individual opinions commented on the possibility for the Court to evaluate the challenged resolutions.76 For example, Judge ad hoc El-Kosheri, in his separate opinion to the order on provisional measures, engaged in judicial review of the Security Council resolutions and considered Resolution 748 of the Security Council to be ultra vires.77 President Schwebel, on the other hand, in his dissenting opinion to the judgment on preliminary objections of 1998 stated that the Court did not possess a power of judicial review and that it could not “overrule or undercut decisions of the Security Council” based on Chapter VII of the Charter.78 Although they came to exactly opposite conclusions, Judge ad hoc El-Kosheri and President Schwebel both understood judicial review as a potential power for the Court to declare resolutions of the Council to be ultra vires. Based on the concept of judicial review explained above, the view adopted by Judge Shahabuddeen is to be preferred. He stated that the situation should not be interpreted as a clash between the Council and the Court, but as a conflict between different obligations under international law.79 Accordingly, the focus of the Court should be on the solution of the legal problem with regard to the conflicting obligations under international law for Libya.

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77 78 79

Order of 14 April 1992, ICJ Reports 1992, p. 144; and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, ICJ Reports 1998, p. 115. The situation preceding this case has been described many times in the literature. See for example Martenczuk, “The Security Council, the International Court of Justice and Judicial Review,” 520. Order of 14 April 1992, ICJ Reports 1992, p. 126, para. 42. Even some judges who concurred in the majority vote against the provisional measures requested by Libya criticised the course of action undertaken by the Council, for example Judges Oda, Lachs and Ni. Order of 14 April 1992, Separate Opinion of Judge ad hoc El-Kosheri, ICJ Reports 1992, p. 210. He was the only Judge declaring the resolution to be invalid. Judgment, Dissenting Opinion of President Schwebel, ICJ Reports 1998, p. 164. Order of 14 April 1992, Separate Opinion of Judge Shahabuddeen, ICJ Reports 1992, p. 141.

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In addition, Judge Shahabuddeen referred to the presumption of validity mentioned earlier in the Namibia case. He stated that “[t]he validity of the resolutions [. . .] has, at this stage, to be presumed”.80 It is remarkable that Judge Shahabuddeen referred in this case to the presumption adopted in the Namibia case, which is the presumption relating to procedural aspects: “[a] resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted”.81 Libya had not claimed that the resolution was unlawful because of procedural irregularities, and it would not have been easy to assume the ultra vires character of the resolution on that ground. As a consequence, one would have expected a reference to the ‘substantial’ presumption of validity, namely the one mentioned in the Certain Expenses case, requiring the resolution to be adopted for the fulfilment of one of the purposes of the Organization. Judge Weeramantry separated the general question of judicial review from the possibility for the Court to review a resolution under Article 39 of the Charter and stated that “the determination under Article 39 is one entirely within the discretion of the Council”,82 because “no other is the judge of the existence of the state of affairs which brings Chapter VII into operation”.83 A similar finding was made by Judge ad hoc Lauterpacht in the Genocide case, where Bosnia had argued that the arms embargo resulting from the adoption of Security Council Resolution 713 (1991) had violated jus cogens.84 Judge ad hoc Lauterpacht stated that, although the Court had limited power of judicial review over resolutions adopted under Chapter VII, it would be impossible “to substitute its discretion for that of the Security Council in determining the existence of a threat to the peace, a breach of the peace or an act of aggression or the political steps to be taken following such a determination”.85 Robert Kolb has suggested that the appreciation of facts, such as the determination under 80 81 82 83

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Ibid., p. 140. Advisory Opinion, ICJ Reports 1971, p. 22, para. 20. Order of 14 April 1992, Dissenting Opinion of Judge Weeramantry, ICJ Reports 1992, pp. 170, 176. Ibid. As a consequence of this he reasoned that “any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal” (at 176). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325. Order of 13 September 1993, Separate Opinion of Judge ad hoc Lauterpacht, ICJ Reports 1993, p. 439, para. 99.

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Article 39, would be non-reviewable, as long as there has not been a manifestly arbitrary appreciation.86 Indeed, it could hardly be imagined that the Court would substitute its own discretion for that of the Council. This would also be inconsistent with the way the Court has performed judicial review in other cases. Thus, it would be more likely that the ICJ would point to an area of ‘political discretion’.87 Judge ad hoc Lauterpacht also considered that the Court could draw the attention of the Security Council to the fact that measures adopted by it could have potentially contributed to the violation of rules of jus cogens, “so that the Security Council may give due weight to it in future reconsideration of the embargo”.88 Thus, instead of perceiving judicial review by the Court as a threat that it would declare a particular act invalid, criticism from the advisory opinions, the judgments and moreover the individual opinions could serve as a warning to the Council as to its legal limits.89 With regard to the measures adopted by the Council under Articles 41 and 42 of the Charter, the extent of review will depend on the nature of the measure and the type of objection made by a State. Although the Council is bound by international law,90 it is still uncertain to what extent precisely international law applies to the Council. It is only logical for example that the Council may ‘breach’ the prohibition of the use of force, since it has the “benefit of a jus ad bellum”.91 According to Kolb, a claim that the Council should have adopted a measure other than the one taken would be inadmissible. However, claims of .

86 Kolb, The International Court of Justice, 905. 87 Alvarez, “Judging the Security Council,” 27. See for the opposite view Martenczuk, “The Security Council, the International Court of Justice and Judicial Review,” 541, stating that the text of Article 39 should be the standard of review for the Court in finding whether the determination under Article 39 by the Council was valid. 88 Order of 13 September 1993, Separate Opinion of Judge ad hoc Lauterpacht, ICJ Reports 1993, p. 441, para. 104. 89 Alvarez, “Judging the Security Council,” 22. 90 Sloan and Hernández, “The Role of the International Court of Justice,” 225; Karl Doehring, “Unlawful Resolutions of the Security Council and their Legal Consequences,” Max Planck Yearbook of International Law 1 (1997): 91–109, in particular 92–3; Erika de Wet, “Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice,” Schweizerische Zeitschrift für Internationales und Europäisches Recht 3 (2000): 263–64; and Alvarez, “Judging the Security Council,” 17. 91 See Kolb, The International Court of Justice, 905.

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incompetence, abuse of discretionary powers and the lack of proportionality could be addressed by the Court.92 With regard to the standard of review, the preferable solution in line with the argument developed in this contribution would be for the Court to develop differing standards of review, depending on which type of resolution the Court is dealing with, which type of activity has been challenged and whether the resolution itself or the measures taken on the basis of that resolution are the object of review.93 Conclusion This contribution has provided an example of how to analyse the question of judicial review with regard to different types of resolutions adopted by the General Assembly and the Security Council. It is based on the assumption that the question whether the Court has a competence to perform judicial review in general is not sufficient and that the extent and standard of judicial review by the ICJ depend on the object of the review. It is uncontested that in the course of advisory opinions and if objections have been made, the Court may review resolutions in relation to procedural claims of invalidity. In doing so the Court has applied a ‘procedural’ presumption of validity, indicating that it can review whether the particular organ has followed the proper procedure. At the same time, however, the Court has relied on the practice of the political organs to justify departure from the wording of procedural rules. Only in the hypothetical case of the Second Admissions case did the Court firmly establish the limits of the powers of the Assembly, confirming the fact that the Court may directly review procedural aspects at the request of the organ asking for the advisory opinion. With regard to claims of invalidity based on the absence of a specific power, the Court has in the Certain Expenses case put forward a ‘substantive’ presumption and it has examined whether the particular resolution was adopted for the fulfilment of the purposes of the Charter. The Court has taken a liberal approach with regard to the purposes of the Organization, and this teleological approach can also be discerned in other cases in this category. Moreover, in the Effect of Awards case the Court did not even consider its competence and pointed to certain limits for the Assembly, although the Assembly was also given discretion to decide which measures are appropriate for the functioning 92 93

Ibid., 906 Ibid., 909.

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of the Organization. The Namibia case shows that the Court engaged in substantive review of the Assembly resolution terminating the mandate, amounting to a less deferential standard of review, also because no presumption of validity applied to the Assembly resolution. Thus, it can be concluded for this category that the Court has confirmed its powers of judicial review in its advisory opinions, paying due regard to the powers of the Assembly and relying on a teleological interpretation, thereby contributing to the effective functioning of the Organization. In the third category of resolutions adopted on the basis of a discretionary power, the Court has demonstrated a willingness to perform indirect review of Council resolutions because objections to the legality of those resolutions had been put forward by States. In both proceedings concerning advisory opinions the Court left a considerable margin of discretion to the Council, and in one case the substantive teleological presumption of validity was applied. Obviously, the Court will be more cautious when reviewing Council resolutions in contentious cases and the role of the Court will depend on the nature of the dispute and the legal issues put before the Court. It is likely that this category will have to be divided into other more detailed subcategories when establishing the right standard of review, depending on the exact nature of the dispute and the legal issues put before the Court. As has been demonstrated in the Lockerbie and Genocide cases, Security Council resolutions have been subject of criticism by individual judges through separate and dissenting opinions. Although this would not qualify as judicial review performed by the ICJ, the separate opinions can provide a valuable assessment of certain legal issues that are pending before the Council. Moreover, in this way certain aspects of the Council’s powers could be clarified.

chapter 8

The Effects of International Legal Obligations in Domestic Law in Light of the Judgment of the Court in the Medellín Case Ronny Abraham

The Issues in the Medellín Case

To date there have been few cases which have given the International Court of Justice the opportunity to address the issue of the effects in domestic legal orders of international legal obligations. The most recent was the ‘Medellín case’, more exactly the request submitted by Mexico for interpretation of the judgment rendered by the Court on 31 March 2004 in the case concerning Avena and Other Mexican Nationals.1 In its 2004 judgment, the Court found that the United States had breached its obligations under Article 36, paragraph 1, of the Vienna Convention on Consular Relations by failing to inform 51 Mexican nationals of their consular rights after their arrest and not allowing the relevant consular posts to be appropriately informed. It further found that, by refusing review and recon‑ sideration of the convictions of those Mexican nationals who had requested this, after it had been established that their consular rights had been violated, the United States had breached its obligations under Article 36, paragraph 2, of the Vienna Convention, which requires that “full effect” be given to the pur‑ poses for which the rights under that article are accorded. Finally, and it is this point of the operative paragraph which laid at the core of the request for inter‑ pretation subsequently presented by Mexico, the Court decided that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review

* Judge at the International Court of Justice. 1 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, ICJ Reports 2009, p. 3.

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and reconsideration of the convictions and sentences of the Mexican nationals referred to [. . .] above.2 In the years following the Avena judgment, the United States failed to carry out its obligation to implement the judgment in full, since the majority of the indi‑ viduals concerned who had requested review and reconsideration of their con‑ victions had met with a refusal on the part of the competent criminal courts, on the ground that domestic law did not allow this. The United States Supreme Court upheld the stance taken by the local courts, holding, in a judgment of 25 March 2008, that neither Article 94, paragraph 1, of the United Nations Charter, nor the Avena judgment itself, could produce direct effects in United States domestic law, so as to allow the procedural rules applicable under state law to be disregarded.3 That judgment closed the door to any possibility of securing the review of convictions in the absence of any amendment to domestic law. At a time when that appeared to be a somewhat remote prospect, the execution of one of the convicted men, José Ernesto Medellín Rojas, had been scheduled to take place in Texas in the near future. It was in those circumstances that, on 5 June 2008, Mexico submitted its request for interpretation to the Court, to which it attached a request for the indication of provisional measures ask‑ ing the Court, in particular, to order the United States to stay the execution of Medellín, which had been set for the following 5 August. As we know, the Court initially granted the provisional measures request,4 then, some months later, dismissed as inadmissible the request for interpretation.5 The principal difficulty raised by Mexico’s request for interpretation of the Avena judgment was to determine whether there really existed between the Parties a “dispute as to the meaning or scope of the judgment” within the meaning of Article 60 of the Statute of the Court, a necessary condition for the admissibility of such a request. The Court had provisionally replied to that question in the affirmative—but only prima facie—in its order on the request 2 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 72, para. 153, subpara. (9). 3 Supreme Court of the United States, José Ernesto Medellín, Petitioner v. Texas, 552 U.S. 491 (2008). 4 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, ICJ Reports 2008, p. 311. 5 Judgment, ICJ Reports 2009, p. 3.

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for provisional measures; it still had to give a definitive response in its substan‑ tive judgment; that response was negative. It is here that the question of the direct effect of international obligations within the domestic legal order comes into play. To establish the existence of a “dispute” within the meaning of Article 60, Mexico argued in its request that the obligation of the United States under point 9 of the operative part of the Avena judgment constituted an obligation of result, and that the United States accordingly had to take any and all steps necessary effectively to provide the review and reconsideration of the convic‑ tions mandated by the judgment, and meanwhile refrain from executing any Mexican national entitled, under that judgment, to claim such review. The United States made it clear, right from the oral phase of the request for provisional measures, that it was fully in agreement with Mexico’s interpreta‑ tion, and that there was thus no dispute between the Parties (as a result of which it asked the Court—unsuccessfully—to dismiss the request for provi‑ sional measures, and then—successfully—to dismiss the substantive request). It was most probably because of the line of defence adopted—to nobody’s surprise—by the United States that, in the course of the proceedings, Mexico made some adjustments (or additions) to its submissions. In its “Further Written Explanations” of 17 September 2008, setting out its final submissions, Mexico, after again stating that the obligation under point 9 of the operative paragraph in the Avena judgment constituted an obligation of result, added the following: [t]he United States, acting through all its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, must take all measures necessary to provide the reparation of review and reconsidera‑ tion [. . .] (and to ensure that, pending such review, no national should be executed).6 The significance of the phrase which was added to the original submissions becomes particularly apparent from Mexico’s observations in its “Further Written Explanations”, where it stated that 6 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Submission of Mexico in Response to the Written Observations of the United States of America filed in the Registry of the Court on 17 September 2008, pp. 24–25, para. 86 (emphasis added).

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the operative language [of the Avena Judgment] establishes an obligation of result reaching all organs [of the United States], including the federal and state judiciaries, that must be discharged irrespective of domestic law impediments.7 In short, Mexico’s complaint against the United States was that it had failed to ensure that the obligation under point 9 was given direct effect in its domestic legal order, that is to say, an effect such that the American judicial organs were bound to enforce the obligation in question irrespective of the state of the leg‑ islation, whereas, according to the Applicant, such direct effect was required by the Avena judgment when correctly interpreted. The question thus arose before the Court of whether an obligation resulting from a judgment rendered by it (that is to say, in reality, from a pre‑existing international norm as interpreted and applied by the Court) must necessarily produce a direct effect in the domestic legal order of the State at which that obligation is directed, such that the courts of that State are themselves bound to enforce the obligation in question without needing to await an amendment of the relevant law, even when the constitutional rules of that State would prevent them from so acting. This question arises of course especially in the case of obligations which, in light of their subject‑matter, are addressed pri‑ marily to the State’s judicial organs, which was the case of the obligation at stake in the Avena case, as the Court had indeed made clear in the reasoning of the judgment. While there was no ‘dispute’ between the Parties on the issue of whether point 9 of the operative paragraph in the Avena judgment created an obliga‑ tion of result—both agreed that it did –, on the other hand there was undoubt‑ edly disagreement on the question of whether the United States was required to ensure that the obligation was given direct effect in its domestic legal order. Both the Supreme Court in its 2008 judgment and the representatives of the United States Federal Executive in the proceedings before the Supreme Court answered that question in the negative. But did that disagreement constitute a ‘dispute as to the meaning or scope’ of the Avena judgment?

The General Question of the Effects of a Judgment of the Court in the Domestic Legal Order

In its judgment of 19 January 2009, the Court held that “[w]hether or not there is a dispute, it does not bear on the interpretation of the Avena Judgment, in 7 Ibid., p. 16, para. 56 (emphasis added).

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particular of [point 9 of its operative paragraph]”,8 as a result of which the request for interpretation was declared inadmissible. Indeed, Mexico’s argument [. . .] concern[ed] the general question of the effects of a judgment of the Court in the domestic legal order of the State par‑ ties to the case in which the Judgment was delivered, not the “meaning or scope” of the Avena Judgment, as Article 60 of the Court’s Statute require[d].9 That enabled the Court, referring to that “general question”, not to decide it, while at the same time going far enough to allow a measure of guidance to emerge. On the one hand, the Court cannot decide a “general question” like this one in the context of a request for interpretation. That does not mean, of course, that the Court refuses as a matter of principle to take a position on issues of this nature: it might perhaps have done so if it had been seized of proceed‑ ings by Mexico requesting a finding that the United States was in breach of its obligation to implement the Avena judgment, and if it had been argued, in support of that request, that the mere fact that the Supreme Court had denied that American courts had the power—and indeed the duty—to enforce the obligation under point 9 without awaiting legislation enabling them to do so, if necessary disregarding any law to the contrary, constituted a violation of the United States’ international obligations. However, Mexico lacked the necessary basis of jurisdiction to institute proceedings of this kind in 2008. Indeed, the operative paragraph of the judgment says nothing about the “general question of the effects of a judgment of the Court in the domestic legal order of the States parties to the case”. The Court confines itself to a finding that the issues raised by Mexico “are not matters which have been decided by the Court in its Judgment [. . .] in the case concerning Avena [. . .] and thus cannot give rise to the interpretation requested”.10 Yet, between paragraph 43 of the judgment, which notes that there are “dif‑ ferent contentions as to whether paragraph 153 (9) of the Avena Judgment envisages that a direct effect is to be given to the obligation contained therein”, and paragraph 45, which states that such a question does not concern the inter‑ pretation of the Avena judgment itself, since, in reality, it concerns the “general question of the effects of a judgment of the Court in the domestic legal order of the States parties to the case”, the Court sets out in paragraph 44 considerations 8 Judgment, ICJ Reports 2009, p. 17, para. 45. 9 Ibid. 10 Ibid., pp. 20–21, para. 61, subpara. (1).

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which perhaps go beyond what was strictly necessary and which provide indi‑ cations of its views on this “general question”. Paragraph 44 contains three important propositions: “[t]he Avena Judgment nowhere lays down or implies that the courts in the United States are required to give direct effect to paragraph 153 (9)”; “the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduc‑ tion within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law”; finally, “[n]or moreover does the Avena Judgment prevent direct enforceability of the obligation in question, if such an effect is permitted by domestic law”. Following these three propositions, para‑ graph 44 concludes that “[i]n short, the question is not decided in the Court’s original Judgment”, and thus cannot be submitted to it for interpretation. This reasoning may be understood as follows. The Avena judgment is silent on the question of the direct effect of the obligation which it imposes, and it cannot be held that, even implicitly, it obliges the United States to act so as to give that obligation (the obligation under point 9) direct effect in its domestic legal order. In consequence, it is the general law governing the implementa‑ tion of the Court’s judgments by States which applies. And the Court indicates what, in its view, that general law consists of: the State at which an obligation is directed can give it direct effect in its own legal order (“if such an effect is permitted by domestic law”); it may also refuse to give it such direct effect and prefer to implement it by means of legislation, in particular “if deemed neces‑ sary under domestic constitutional law”. The only important point being that, by one means or the other, the obligation is ultimately implemented within a reasonable time. One may conclude from all of this that, unless a judgment expressly imposes or necessarily implies a direct effect in the domestic legal order of the obliga‑ tion set out therein, the State required to implement that obligation is free to decide whether or not to give direct effect to that obligation, according to what its constitutional law provides. It is indeed domestic constitutional law that governs the distribution of powers between the various organs of the State, and in particular between the legislative and the judicial branches. And it does so—in principle—without being constrained by international law to prefer one solution to another. What is true for the implementation of an obligation deriving from a judg‑ ment must be equally true for the implementation of an obligation under a treaty. In conclusion, if this analysis is correct, the judgment of 19 January 2009, while stating that it cannot address a “general question” which was not decided by the original judgment, indeed teaches us more than it appears to do—and than was indicated by the Court itself.

chapter 9

Decisions of the International Court of Justice on Disputes Concerning Internal Law Mariko Kawano Introduction The United Nations has emphasised the importance of promoting the rule of law at national and international levels in the international community. In fact, one of the most interesting and important features of the present international community is that the interactions between international and internal legal systems have become more intense. Various international conventions provide concrete and detailed obligations with which it is impossible to comply without corresponding internal rules. In particular, several conventions have been concluded in order to introduce certain international rules or standards into the internal legal systems of the contracting parties. Moreover, some of those conventions explicitly provide obligations to legislate or amend internal legal rules in accordance with conventional rules. Another interaction can be observed in the phenomenon that internal rules influence the formulation of new international legal rules. In some cases, a State adopts a new ambitious legislation with the specific intention of stimulating the development of international legal rules. When many other States support that legislation or adopt similar legislation, those internal rules may constitute significant State practice in the development of customary international law. It appears that these intensive interactions have resulted in the increase of the number of cases before the International Court of Justice in which the subject of the dispute closely relates to the internal legal rules or system of the Respondent.1 In some cases, the Applicant asserts the wrongfulness of the * Professor of International Law, Waseda University, Faculty of Law. 1 In addition to the cases discussed in this paper, the Applicant intended to discuss issues concerning the conduct of State organs in the cases of Certain Property (Liechtenstein v. Germany) and Certain Criminal Proceedings in France (Republic of the Congo v. France). In the Certain Property case, in order to found the jurisdiction of the Court under Article 1 of the European Convention for the Peaceful Settlement of Disputes, Liechtenstein argued that

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treatment of its nationals under international law, within the jurisdiction of the Respondent, pursuant to the latter’s internal legal rules. In other cases, the Applicant contends the wrongfulness of the conduct of a State organ pursuant to internal law, allegedly in contradiction with international legal rules. In this paper, all these disputes are hereinafter referred to as disputes concerning internal legal rules. In both cases, the Applicant questions the compatibility with international law of internal rules, or of the conduct of a State organ pursuant to the internal rules. In particular, in many of the latter cases, the Applicant requests the Court to order reparation not in the form of monetary compensation, but rather in the form of specific measures to be adopted by the Respondent. Thus, the Court is required to examine issues of internal law in the context of the analysis of the alleged breach of international obligations. It is also necessary for the Court to consider the appropriateness of the remedies requested by the Applicant taking into account the internal legal system of the responsible State. In a dispute concerning internal legal rules, the judgment of the Court may play a role not only in the settlement of the dispute between the parties, but also in the promotion and enhancement of the rule of law, both at the internal and international level. This paper will discuss the problems that may arise in those cases and the role of the Court, as the principal judicial organ of the UN, in enhancing the rule of law in the international and internal legal systems.

Treatment of Nationals and Internal Legal Rules



New Direction of the Exercise of the Right of Diplomatic Protection

The exercise of the right of diplomatic protection by the national State is not a new phenomenon. However, a recent case of diplomatic protection reflects its new direction, as legal rules of international human rights conventions the decisions of the German courts and the positions taken by the German Government gave rise to the dispute referred to the Court. See Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, ICJ Reports 2005, p. 20, paras. 32–33. However, the Court found that it lacked jurisdiction ratione temporis to decide the dispute: ibid., p. 27, para. 54, subpara. (1) (b). In the Certain Criminal Proceedings in France case, the Republic of the Congo raised issues concerning the measures of investigation and prosecution taken by French authorities. See Application Instituting Proceedings Filed in the Registry of the Court on 9 December 2002, pp. 2–5. The Court ordered that the case be removed from the General List: Order of 16 November 2010, ICJ Reports 2010, p. 637.

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provide the rules and standards for the treatment of a foreign national in the territory of the contracting party. In the Ahmadou Sadio Diallo case, Guinea filed the application against the Democratic Republic of the Congo by exercising its right of diplomatic protection.2 In this case, human rights aspects were reflected in the arguments of Guinea. With regard to the claim concerning the arrest, detention and expulsion measures taken against Mr Diallo, the Court noted that his expulsion had not been decided in accordance with the law, with respect to procedural guarantees conferred on aliens by Congolese law and aimed at protecting the persons in question against the risk of arbitrary treatment. The Court found that, consequently, the measures of his expulsion violated the obligations under the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.3 In this context, the Court clarified its power to interpret domestic law. It stated that “it is for each State, in the first instance, to interpret its own domestic law” and that the Court does not, “in principle, have the power to substitute its own interpretation for that of the national authorities, especially when that interpretation is given by the highest national courts.” It added that [e]xceptionally, where a State puts forward a manifestly incorrect interpretation of its domestic law, particularly for the purpose of gaining an advantage in a pending case, it is for the Court to adopt what it finds to be the proper interpretation.”4 With regard to Guinea’s contentions concerning the allegedly illegal arrest and detention, the Court also examined the legality of the conduct under Congolese law, and the alleged breach of the obligations under the Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights and found that Guinea’s arguments were well-founded.5 In this case, as far as the forms of reparation were concerned, Guinea requested the Court to declare the obligation to pay monetary compensation,6 and, after the judgment on the merits in 2010, the Court fixed the amount of compensation due in consideration of the non-material and material ­injuries 2 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, p. 645, para. 1. 3 Ibid., pp. 663–666, paras. 64- 73. 4 Ibid., p. 665, para. 70. 5 Ibid., pp. 667–670, paras. 75–85. 6 Ibid., p. 693, para. 165, subpara. (7).

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suffered by Mr Diallo.7 As this case had been referred to the Court in the exercise of the right of diplomatic protection, it was appropriate for Guinea to claim monetary compensation and for the Court to allow that claim. However, it appears that the influence of the findings on the internal legal system of the DRC cannot be neglected. In the examination of the legality of the treatment of Mr Diallo under international law, the Court discussed the fulfilment of the procedures under Congolese law to determine whether the requirements of the rules of international human rights law were satisfied. The arguments of the Court reflect the significance of the internal law in complying with the rules of international human rights law concerning the treatment of foreign nationals. The Court found that it could examine the legality of the conduct of State organs pursuant to the internal legal rules. This might constitute an important precedent to ensure the compliance with international rules in the internal legal system.

Enforcement Activities Pursuant to Internal law and the Treatment of Vessels Flying a Foreign Flag

One of the issues involved in the Fisheries Jurisdiction (Spain v. Canada) case related to the State organs’ treatment of a vessel flying a foreign flag. However, it may be pointed out that the intrinsic issue in this dispute concerned the legality or opposability of certain internal legal rules pursuant to which the enforcement activities of the State organs were undertaken. Canada amended the Coastal Fisheries Protection Act and related acts and regulations to extend its jurisdiction, including enforcement measures with use of force by Canadian officers, to regulate the fishing activities beyond 200 nautical miles off its coast in the NAFO Regulatory Area.8 Canada simultaneously deposited a new declaration recognising the compulsory jurisdiction of the Court in order to add a new reservation aimed at excluding from the jurisdiction of the Court disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral

7 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, ICJ Reports 2012, p. 324. 8 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment, ICJ Reports 1998, pp. 439– 443, paras. 15–18.

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Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.9 Immediately after the enactment of the legislation in question, the Canadian Coast Guard arrested a fishing vessel flying the Spanish flag in the waters beyond 200 nautical miles off the coast.10 In order to avoid the application of Canada’s new reservation to its declaration, Spain characterised the dispute as one relating to Canada’s lack of entitlement to exercise jurisdiction on the high seas, and the non-opposability of its amended Coastal Fisheries Protection legislation and regulations to third States. It further argued as follows: The object of the Spanish Application relates essentially to Canada’s entitlement in general and in particular in relation to Spain, to exercise its jurisdiction on the high seas against ships flying the Spanish flag and their crews, and to enforce that right by a resort to armed force.11 In contrast, Canada took the view that the dispute concerned the adoption of measures for the conservation and management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement, which was excluded from the jurisdiction of the Court.12 In response to these different characterisations of the dispute before it, the Court considered that the essence of the dispute was whether Canada had breached the rights of Spain under international law by the specific acts against the vessel flying the Spanish flag undertaken by Canada pursuant to its amended legislation and implementing regulations.13 After the examination of the applicability of the relevant reservation, the Court concluded that it did not have jurisdiction to entertain the application of Spain because the dispute before it fell within the reservation of Canada’s declaration recognising the compulsory jurisdiction of the Court.14 In this case, Spain raised the issues of the illegality or non-opposability of Canadian legislation to Spain and of the breach of its right to exercise its jurisdiction over vessels flying its flag on the high seas. With regard to the remedies, 9 10 11 12 13 14

Ibid., pp. 438–439, para. 14. Ibid., p. 443, para. 19. Ibid., p. 446, paras. 23–24. Ibid., p. 446, para. 23. Ibid., p. 450, paras. 34–35. Ibid., p. 466, para. 84.

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Spain requested the Court to adjudge and declare that Canada was bound to refrain from any repetition of the acts complained of, and to offer reparation in the form of an indemnity, the amount of which had to cover all the damages and injuries occasioned. Spain did not directly discuss the compatibility of Canada’s legislation with international law as the main subject of the dispute before the Court.15 According to Spain, the main subject of the dispute was the legality of the treatment of the vessel flying the Spanish flag, the material injury suffered by Spain through its national vessel, and the most appropriate remedy for that injury. However, it should be noted that the Court might have faced the issue of the compatibility of the new legislation of Canada with international law in the context of the examination of the legality of the conduct of the Canadian Coast Guards if it had decided to exercise its jurisdiction in this case. The developments that occurred in this case after the filing of the application should be noted. The European Community and Canada reached an agreement to strengthen the conservation and enforcement measures in the NAFO regulatory area. The proceedings against the vessel and its master were discontinued on the order of the Attorney-General of Canada. Canada also amended the Coastal Fisheries Protection Regulations, so as to remove Spain and Portugal from the application of the regulations.16 As a result of these developments, the dispute referred to the Court by Spain was almost settled. It may be suggested that this case reflects the attempts of a State to influence the change of international conventional rules through its national legislation and its impact on international relations. It also constitutes an example of a dispute concerning national legislation being referred to the Court as an international legal dispute.

Judgments of the Court Requiring Specific Measures to Be Adopted in the Internal Legal Systems

In the Fisheries Jurisdiction (Spain v. Canada) case, it might have been rather difficult for Spain to directly and solely assert the wrongfulness of the newly amended act and regulations of Canada, given the jurisdictional problems. However, in more recent cases concerning internal legal rules, the Applicants have raised the issue of the wrongfulness of internal legal rules, or of the conduct of a State organ pursuant to them, and have expressed their intention 15 16

Ibid., p. 437, para. 10. Ibid., pp. 444–446, paras. 21–22.

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to request the Court to decide the specific measures to be adopted by the Respondent as the consequence of the allegedly internationally wrongful act. In these cases, when the Court finds that the internal law or the act of a State organ of the Respondent is inconsistent with international legal rules, it may decide that the appropriate form of reparation is for the Respondent to adopt specific measures in its internal legal system. The decision prescribing the correction or adjustment of the internal legal system in accordance with international law might allow the Court to contribute to the implementation of the international legal rules. At the same time, as that type of decision requires a sovereign State to ensure the adoption of the prescribed measures within its internal legal system, it is sometimes not easy for the responsible State to comply effectively with a judgment of that type. One may suggest that there are two different issues regarding the difficulties in the decisions of this type: the first is how the contents of the specified measures to be prescribed can be found and decided, while the second is how to ensure compliance with the judgment. These issues will be discussed in the following sections.

The Legal Consequences of the Internationally Wrongful Act



Findings of the Court in the Cases of LaGrand and Avena

For the purpose of the discussion in this section, the judgments rendered in the cases of LaGrand and Avena provide very interesting clues to the arguments. In both judgments, the Court decided that the United States of America was under an obligation to provide, by means of its own choosing, review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Vienna Convention on Consular Relations.17 However, the grounds for this finding were completely different. In the LaGrand case, the fourth submission of Germany, which concerned the remedy, focused on the assurances and guarantees of measures to avoid a repetition of the alleged unlawful act.18 Germany contended that the United States was required to provide for an effective exercise of the rights under Article 36 of the Vienna Convention and, in particular, in cases involving the death penalty, to provide an effective review of and remedies for ­criminal 17

LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 516, para. 128, subpara. (7), and Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 72, para. 153, subpara. (9). 18 Judgment, ICJ Reports 2001, pp. 508–509, para. 117.

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convictions impaired by a violation of the rights under that provision. In response to this submission, the Court first found that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany’s request for a general assurance of non-repetition.19 The Court further stated that if the United States, notwithstanding its commitment to respect the obligation of consular notification, failed in that obligation to the detriment of German nationals, the United States, by means of its own choosing, was required to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. It should be noted that in this context the Court stated as follows: In the present case the Court has made its findings of violation of the obligation under Article 36 of the Vienna Convention when it dealt with the first and the second submission of Germany. But it has not found that a United States law, whether substantive or procedural in character, is inherently inconsistent with the obligations undertaken by the United States in the Vienna Convention. In the present case the violation of Article 36, paragraph 2, was caused by the circumstances in which the procedural default rule was applied, and not by the rule as such.20 By this statement, the Court expressed its respect for the sovereignty of a State with regard to the internal legal system even in the context of the violation of an international obligation. In the Avena case, Mexico put the emphasis on restitutio in integrum in its submissions, and the Court examined the request of Mexico in a detailed way and determined which measure constituted restitutio in integrum.21 Although Mexico also requested the Court to prescribe measures for cessation and assurances and guarantees of non-repetition, the Court did not allow this claim and found that the commitment expressed by the United States met that request.22 This difference in the contents of the judgments originated from the intrinsic 19 Ibid., p. 513, para. 124. 20 Ibid., pp. 513–514, para. 125. 21 Judgment, ICJ Reports 2004, pp. 58–67, paras. 116–143. 22 Ibid., pp. 67–69, paras. 144–150.

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difference in the factual situations of the two cases. In the LaGrand case, one of the brothers had been executed before the filing of the application and the other was executed despite the order indicating the provisional measure of the stay of the execution. The two individuals concerned had been executed before the proceedings on the merits of the case. Conversely, in the Avena case, no individual of Mexican nationality concerned was executed before the final judgment. These situations influenced the respective arguments of the Applicants and the determination of the Court with regard to the appropriate form of the legal consequences. However, although the circumstances were very different and the purposes of the remedies were not the same, the measures prescribed by the Court were almost identical for the United States.

Further Arguments on Cessation, Assurances and Guarantees of Non-repetition of the Internationally Wrongful Act and restitutio in integrum

Cessation, assurances and guarantees of non-repetition and restitutio in integrum can be theoretically differentiated. However, as the commentaries to Articles 30 and 35 of the ILC Articles on State Responsibility admit, they are closely connected and their connection is particularly important where the obligation breached is of a continuing character.23 In the Jurisdictional Immunities case, Germany requested the Court to order Italy to take, by means of its own choosing, any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany’s sovereign immunity became unenforceable. The Court considered this submission “to be understood as implying that the relevant decisions should cease to have effect.”24 The Court then held that the Italian Republic must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which the Federal Republic of Germany enjoys under international law cease to have effect.25

23 24 25

Commentary to Article 30 and commentary to Article 35, in United Nations Yearbook of the International Law Commission, vol. II, part 2 (2001): 89 (para. 7) and 98 (para. 6). Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 153, para. 137. Ibid., p. 155, para. 139, subpara. (4).

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The Court stated that [t]he decisions and measures infringing Germany’s jurisdictional immunities which are still in force must cease to have effect, and the effects which have already been produced by those decisions and measures must be reversed, in such a way that the situation which existed before the wrongful acts were committed is re-established.26 In this case, the Court did not find it necessary to order Italy to offer assurances of non-repetition of the internationally wrongful act or to adopt specific measures to ensure non-repetition, which Germany requested of the Court in its sixth submission. The Court took the view that there was no reason to believe that special circumstances justified those measures.27 In the Obligation to Prosecute or Extradite case, Belgium requested the Court to decide that Senegal was under the obligation to cease an internationally wrongful act of a continuing nature by submitting Mr Habré to its competent authorities for the purpose of prosecution without delay, or, failing that, by extraditing him to Belgium without further ado. In response to this submission, the Court confirmed the continuing nature of the internationally wrongful act of Senegal and the obligation to cease that continuing act. It concluded that “Senegal must therefore take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.”28

Obligations Violated and the Measures for restitutio in integrum

There may also be room for argument with regard to the contents of the measures prescribed by the Court as forms of restitutio in integrum. Article 35 of the ILC Articles on State Responsibility provides that restitution means the re-establishment of the situation which existed before the wrongful act was committed, and that a State responsible for an internationally wrongful act is under such an obligation provided and to the extent that restitution (a) is not materially impossible or (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. According to its commentary, ‘judicial restitution’ constitutes one of the forms of restitution. 26 27 28

Ibid., pp. 153–154, para. 137. Ibid., p. 154, para. 138. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 461, paras. 119–121 and p. 463, para. 122, subpara. (6).

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It includes the revocation, annulment, or amendment of a constitutional or legislative provision enacted in violation of a rule of international law or the rescinding or reconsideration of an administrative or judicial measure unlawfully adopted in respect of the person or property of a foreigner. The decision of an international court or tribunal is also considered to be one of the forms of restitution.29 The commentary also points out the importance of the consideration of the content of the primary obligation breached, the material possibility and the proportionality of the measures to be adopted.30 In the Arrest Warrant case, the DRC argued that the appropriate remedy was to recall and cancel the arrest warrant concerned and to inform the foreign authorities of the renouncement of the request for co-operation in executing the warrant.31 In response to this submission, the Court held that its findings of the infringement of the immunity from criminal jurisdiction and the inviolability of the incumbent Minister for Foreign Affairs constituted a form of satisfaction for the moral injury.32 However, referring to the findings of the PCIJ in the Chorzów Factory case, it further found that “ ‘the situation which would, in all probability, have existed if [the illegal act] had not been committed’ cannot be re-established merely by a finding by the Court that the arrest warrant was unlawful under international law.” The Court said that the “warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs” and that “Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.”33 It should be noted that in their joint separate opinion, Judges Higgins, Kooijmans, and Buergenthal questioned the determination by the Court that the cancellation of the arrest warrant was a form of restitutio in integrum.34 They pointed out the inappropriateness of the reference to the findings in the Chorzów Factory case, in which circumstances were very different from this case, and the impossibility of the restoration of the status quo ante because of the termination of the official duty of Mr Yerodia. They also objected to the characterisation of the arrest warrant as a continuing 29 Commentary to Article 35, in United Nations Yearbook of the International Law Commission, vol. II, part 2 (2001): 97–98 (para. 5). 30 Ibid., at 98 (paras. 6–11). 31 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 30, para. 72. 32 Ibid., p. 31, para. 75. 33 Ibid., p. 32, para. 76 and p. 33, para. 78, subpara. (3). 34 Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ibid., pp. 89–90, paras. 87–89.

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wrongful act because “as soon as [Mr Yerodia] ceased to be Minister for Foreign Affairs, the illegal consequences attaching to the warrant also ceased.”35 In the Avena case, Mexico argued that it was entitled to full reparation in the form of restitutio in integrum (the fourth submission), that the annulment of the convictions and sentences constituted the appropriate form of reparation as restitutio in integrum (the fifth submission), and that such restitutio in integrum included the obligation to take all measures necessary to ensure that a prior violation of Article 36 of the Vienna Convention should not affect the subsequent proceedings (the sixth submission).36 In response to this contention, the Court examined the appropriate form of the reparation. It first took the view that the case before it concerned the application of Article 36 of the Vienna Convention, and not the correctness, as such, of any conviction or sentencing, and further rejected the arguments of Mexico pertaining to the nature of the right to consular notification and consular communication under the Vienna Convention as a fundamental human right.37 The Court also rejected Mexico’s sixth submission.38 When examining the seventh submission of Mexico, the Court found that it was necessary to specify the contents of the remedies in order to redress the injury caused to Mexico and to its nationals through non-compliance with the obligations under Article 36 of the Vienna Convention. The Court agreed with the contention of Mexico that the operation of the procedural default rule effectively barred the claim for review and reconsideration, raising the issue of the violation of the rights under the Vienna Convention.39 The Court examined the measures to be adopted for the “review and reconsideration”. It took the view that the “review and reconsideration” prescribed in the LaGrand case should be effective, and that what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration.40 According to the Court, the legal consequences of the breach of the individual rights of Mexican nationals under Article 36 had to be examined and 35 Ibid., p. 89, para. 89. 36 Judgment, ICJ Reports 2004, p. 58, paras. 116–117. 37 Ibid., pp. 59–61, paras. 121–125. 38 Ibid., p. 61, paras. 126–127. 39 Ibid., pp. 61–63, paras. 129–134. 40 Ibid., p. 65, para. 139.

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accounted for in the course of review and reconsideration, to which the judicial process was suited. As far as the clemency procedure was concerned, the Court pointed out that the issue in this case was whether the clemency process as practised within the criminal justice systems of different states in the United States can, in and of itself, qualify as an appropriate means for undertaking the effective “review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention”.41 The Court concluded that the clemency process, as currently practiced within the United States criminal justice system, did not appear to meet the requirement of effective “review and reconsideration”. Appropriate clemency procedures could only supplement the judicial system.42 With regard to the request of Mexico for the guarantees and assurances of non-repetition, the Court regarded the commitment by the United States to comply with the obligations under Article 36 to be sufficient for this purpose.43 In the Questions of Mutual Assistance case, Djibouti alleged various violations by France of conventional and customary international law, and, in its final submissions, requested the Court to order the following specific measures as the consequence of the respective violations: transfer of the ‘Borrel file’, the withdrawal and annulment of the summonses concerned, cessation, and specific assurances and guarantees of non-repetition of the alleged wrongful act.44 When considering the various submissions of Djibouti, the Court accepted only to declare the violation by France of the obligation under Article 17 of the 1986 Convention on Mutual Assistance, which provides the obligation to give the reasons for the refusal of the request for mutual assistance. It should also be noted that, as far as the refusal by France of the transfer of the ‘Borrel file’ was concerned, the Court admitted the justification advanced by France pursuant to Article 2 (c) of the Convention.45 The Court took the view that it would not order the Borrel file to be transmitted with certain pages removed nor would it have been in a position to do so. It also did not consider it necessary to “order the publication of the reasons underlying the decision to refuse the request 41 42 43 44 45

Ibid., p. 66, para. 142. Ibid., p. 66, para. 143. Ibid., pp. 68–69, paras. 149–150. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, ICJ Reports 2008, pp. 186–187, para. 18. Ibid., pp. 227–233, paras. 140–156.

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for mutual assistance, these having in the meantime passed into the public domain.” Consequently, the Court held that its finding of the violation of the obligation to give reasons for the refusal of mutual assistance by France constituted appropriate satisfaction.46 In the Avena case, the Court obviously focused on the legal consequences of the breach of the obligations under Article 36, and on the injuries caused by that specific breach. It took the view, as in the LaGrand case, that the issue before it was not the incompatibility of the internal legal rules of the United States as such but the circumstances caused by those rules. Therefore, the Court prescribed the review and reconsideration of the decisions concerned as an appropriate form of reparation. In the Questions of Mutual Assistance case, the Court confirmed the wrongfulness only of some of the series of acts concerning the refusal of the request for mutual assistance. The act which the Court considered to be wrongful was of little significance. It appears that because of such a limited scope of the wrongful act, the Court considered that its confirmation of the violation of the obligation under Article 17 constituted appropriate satisfaction. This conclusion may be viewed as reasonable in consideration of the rule violated and the injury suffered by Djibouti.

Problems of Compliance with Judgments of the Court Requiring Specific Measures in the Internal Legal System

Another issue with regard to decisions of the Court prescribing specific measures to be adopted in the municipal legal system is the difficulty in complying with a decision of that type. In cases where those specific measures touch fundamental legal rules of the internal legal system of the responsible State, including the separation of powers, independence of judicial organs, federal system, or other fundamental principles of justice, it might be very difficult for the political branch to persuade other internal organs to comply with the judgment of the Court. The question may be raised whether, or to what extent, the Court should account for those elements in its consideration of the possibility or proportionality of the remedies for restitutio in integrum.

46

Ibid., p. 245, paras. 202–204 and pp. 246–247, para. 205, subpara. (2) (a).

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Voluntary Compliance with the Judgment in the Arrest Warrant Case

In the Arrest Warrant case,47 Belgium withdrew the arrest warrant against Mr Yerodia as was required by the judgment.48 Moreover, it amended the law that had enabled the Belgian authorities to issue and circulate the arrest warrant concerned.49 However, the criminal proceedings against Mr Yerodia continued. On 16 April 2002, the Court of Appeal of Brussels ruled that Mr Yerodia could not be tried in Belgium in view of his absence from the territory of Belgium, because universal jurisdiction under the 1993 Act for crimes committed outside of Belgium could be exercised only if the accused was physically present in Belgium. The Court of Cassation set aside the decision in this case, and remitted it to the Court of Appeal for further consideration. It may be suggested that Belgium took the measures in its internal legal system even further than was required by the judgment of the Court. The real issue behind this case was the legality of the legislation of Belgium, which provided for universal jurisdiction regarding crimes against humanity or other crimes of a similar nature. However, as the DRC withdrew its arguments regarding universal jurisdiction, the Court could not discuss that issue pursuant to the principle of non ultra petita. It should be noted that several judges pointed out in their opinions the fact that the jurisdictional issue was a precondition for the arguments on immunity.50

Problems of Compliance with the Decisions of the Court in the Vienna Convention on Consular Relations Cases

Not every party before the Court can take the measures prescribed in a judgment of the Court. The United States faced difficulties in compliance with the decisions of the Court prescribing specific measures to be adopted in the

47

48 49 50

For detailed information on the judgment see Mariko Kawano, “The Role of Judicial Procedures in the Process of the Pacific Settlement of International Disputes,” Recueil des Cours de l’Académie de Droit International de La Haye 346 (2009): 361–365. Constanze Schulte, Compliance with Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004), 269. International Legal Materials 42 (2003): 749. Separate Opinion of President Guillaume, ICJ Reports 2002, p. 35, para. 1; Declaration of Judge Ranjeva, ICJ Reports 2002, p. 54, para. 2; Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports 2002, p. 64, paras. 3–4; Separate Opinion of Judge Rezek, ICJ Reports 2002, pp. 91–92, paras. 3–4.

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internal legal system in the Vienna Convention on Consular Relations cases.51 In the cases of the Vienna Convention on Consular Relations and LaGrand, the Court indicated provisional measures requiring the United States to take all measures at its disposal to ensure that the individual concerned was not executed pending the final decision in the proceedings. In the LaGrand case, the Court further indicated that the United States should transmit the order to the Governor of the State of Arizona.52 In these cases, the United States did not comply with the orders. The Court found in its judgment in the LaGrand case that its order for the indication of provisional measures was binding in character and created a legal obligation for the United States.53 The Court examined the conduct of the organs of the United States concerning the order and concluded that the United States had not complied with the order.54 After the judgment in the Avena case, three Mexican nationals brought a case for review and reconsideration before US courts. Among them, Mr Medellín had filed petitions for post-conviction relief in state and federal courts prior to the judgment of 2004. After this judgment, although the Court of Appeals denied Mr Medellín’s application, the Supreme Court granted certiorari to hear his case. Just before the Supreme Court heard the oral arguments in the Medellín case, the US President sent a memorandum to the Attorney-General. It reflected the will of the US government to comply with the judgment of the Court prescribing the obligation to review and reconsider the convictions and sentences concerned.55 However, the US Supreme Court dismissed Medellín’s application on the grounds that neither the judgment of the ICJ nor the President’s memorandum constituted directly enforceable federal law.56 In the Request for Interpretation case, as one of the reasons to dismiss the request of Mexico, the Court stated that the “Avena Judgment nowhere lays 51

For detailed information on the problems of compliance with the judgment in the Avena case see Kawano, “The Role of Judicial Procedures in the Process of the Pacific Settlement of International Disputes,” 366–371. 52 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, ICJ Reports 1998, p. 258, para. 41, subpara. I; and LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, p. 16, para. 29, subpara. I (a) and (b). 53 Judgment, ICJ Reports 2001, p. 506, para. 110. 54 Ibid., pp. 506–508, paras. 111–116 and p. 516, para. 128, subpara. (5). 55 US President George W. Bush, “Memorandum for the US Attorney-General Regarding Compliance with the Decision of the International Court of Justice in Avena,” International Legal Materials 44 (2005): 964. 56 Supreme Court of the United States, José Ernesto Medellín, Petitioner v. Texas, 552 U.S. 491 (2008).

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down or implies that the courts in the United States are required to give direct effect to paragraph 153 (9).” The Court admitted that “[t]he obligation laid down in that paragraph is indeed an obligation of result which clearly must be performed unconditionally; non-performance of it constitutes internationally wrongful conduct,” but held that “the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law”. The Court further stated that “[n]or moreover does the Avena Judgment prevent direct enforceability of the obligation in question, if such an effect is permitted by domestic law.”57 In this judgment, the Court also found that the United States had breached its obligation to comply with the order indicating provisional measures of 16 July 2008 as the consequence of the execution of Mr Medellín after unsuccessful applications for review and reconsideration of his sentence and conviction and for stay of execution.58

Specific Measures to Be Adopted by State Organs in the Internal Legal System

When the decision of the Court prescribes specific measures to be adopted by State organs other than the political branch, the government has to persuade other branches concerned to comply with the decisions of the Court. In the Jurisdictional Immunities case, when the Court decided the remedy that prescribed the specific measures to be adopted by the judicial or other organs of Italy, it pointed out that it “has not been alleged or demonstrated that restitution would be materially impossible in this case, or that it would involve a burden for Italy out of all proportion to the benefit deriving from it.” It further added that [i]n particular, the fact that some of the violations may have been committed by judicial organs, and some of the legal decisions in question have become final in Italian domestic law, does not lift the obligation incumbent upon Italy to make restitution. The Court also stated that “[o]n the other hand, the Respondent has the right to choose the means it considers best suited to achieve the required result” and 57

58

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, ICJ Reports 2009, p. 17, para. 44. Ibid., pp. 18–19, paras. 50–54 and p. 21, para. 61, subpara. (2).

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that “the Respondent is under an obligation to achieve this result by enacting appropriate legislation or by resorting to other methods of its choosing having the same effect.”59 It should also be noted that the Senegalese government will be required to obtain the cooperation of the judicial organs in order to comply with the judgment in the Obligation to Prosecute or Extradite case regardless of its choice of prosecution or extradition.60

Concluding Remarks

This paper shows that decisions of the Court requiring specific measures to be adopted in internal legal systems may contribute to the implementation of international legal rules within these internal legal systems. However, in those cases, the remedies determined by the Court cannot avoid touching on the issues of the fundamental aspects of the internal legal systems. It is likely that the expression of ‘by means of its own choosing’, which was used in the cases of Arrest Warrant, LaGrand, Avena, and Jurisdictional Immunities, reflects the consideration by the Court of the balance between the needs for the prescription of specific measures to ensure the appropriate implementation of international legal rules and the respect for sovereignty. Despite that consideration, the separation of powers in the internal system may, as shown by the Medellín case, prevent the government from enforcing or complying with a judgment of the Court that requires some specific measures to be adopted by State organs other than administrative authorities. Considering the increase in the number of cases concerning the wrongfulness of the conduct of State organs other than the political branch, any State may face the same difficulties in complying with a judgment of the Court. In the case of treaty rules, “a Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” as provided in Article 27 of the Vienna Convention on the Law of Treaties. Article 32 of the ILC Articles on State Responsibility does not allow the responsible State to rely on the provisions of its internal law as justification for its failure to comply with its obligations regarding the consequences of an internationally wrongful act. It results from the related commentary that this principle is modelled on Article 27 of the Vienna Convention on the Law of Treaties and is supported both by

59 Judgment, ICJ Reports 2012, p. 154, para. 137. 60 Judgment, ICJ Reports 2012, p. 463, para. 122, subpara. (6).

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State practice and international decisions.61 However, the more decisions of international courts and tribunals order specific measures to be adopted in the internal legal system, the more complicated the situation may become. The basic purpose of this provision may be to ensure compliance with the decisions of international courts or tribunals. It may be possible to argue that the binding effect of the decisions of the Court originates from the UN Charter and the Court’s Statute and, therefore, that the same principle of the law of treaties can be applied to the compliance with obligations prescribed by decisions of the Court. However, it appears that the obligations under the decisions of the Court are different in nature from conventional obligations. While in the case of treaty obligations, it is possible for a State to discern the precise contents of the legal obligations when it becomes a party to the treaty, a State cannot foresee, in advance, the disputes that might be referred against it and the decisions of the Court (in particular, the remedies prescribed by the Court) when it becomes a contracting party to the Statute. It might be necessary to examine to what extent the above provision is applicable to the decisions of the Court. In order to ensure the effectiveness of the decisions of the Court and its contribution to the proper implementation of international legal rules in the internal legal systems and the rule of law, as a result, it is necessary to examine further the theoretically persuasive bases for the requirement of specific measures in internal legal systems as consequences of an internationally wrongful act. At the same time, both the Court and the sovereign States should reconsider the meaning of the binding effect of the decisions of the Court to ensure cooperation for the compliance with the decisions of the Court. The rule of law in the present international community cannot be realised without the cooperation and coordination of the international and internal legal systems, which are independent of, but interactive with, each other. The International Court of Justice, as the principal judicial organ of the United Nations, is expected to play an even more important role in the attempts of the United Nations to enhance the rule of law in the international community.

61

Commentary to Article 32, in United Nations Yearbook of the International Law Commission, vol. II, part 2 (2001): 94 (paras. 2 and 3).

chapter 10

The Court’s Contribution to Determining the Content of Fundamental Principles of International Law Marcelo Kohen

International Law: A Legal System

The subject of the panel of the Conference held on 23 September 2013 to which this presentation contributed was “The International Court of Justice and the International Legal System”. Some may believe that the manner in which the second element of this relationship is expressed—‘international legal system’—is merely a somewhat more elaborate and elegant way of referring to our own discipline, international law. However, these two formulations may be used indistinctly only if one considers that international law amounts to a system. This is what I think, and I believe the Court thinks so too, not only because this was the title chosen for this session, but above all because of the contribution it has made throughout the existence of the Hague Courts. Let us briefly consider the notion of ‘system’. To borrow this notion from the great Geneva linguist Ferdinand de Saussure, a system constitutes an organic whole whose elements can only be defined in relation to one another and according to their respective positions within it. Contrary to what some—fortunately, a minority—affirm, international law is not an aggregate or juxtaposition of scattered rules. As the Court has said: [. . .] a rule of international law, whether customary or conventional, does not operate in a vacuum; it operates in relation to facts and in the context of a wider framework of legal rules of which it forms only a part.1

* Professor at the Graduate Institute, Geneva; Member of the Institute of International Law. The author wishes to thank his assistants, Mr Facundo Gomez Pulisich and Ms Arianna Whelan, PhD candidates at the Graduate Institute, Geneva, for their help in the preparation of this text. 1 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, p. 76, para. 10.

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The Court employed the expression ‘legal system’ in its 1949 advisory opinion on Reparation for Injuries, to refer to the plurality of the types of subjects of international law,2 and again in its 1971 opinion on Namibia, in respect of the interpretation of treaties through time.3 For a system to exist, three elements must be present. First, completeness. There must always be some means of settling legal disputes, even in the absence of specific rules. This is what the authors of the Statute of the Court had in mind by including, at letter (c) of the first paragraph of Article 38 of the Statute, general principles of law.4 This is also what the Permanent Court may have had in mind in formulating what later became known as the ‘Lotus principle’ (though often improperly invoked).5 This is above all what the Court has put into practice by incorporating the notion of equity into its decisionmaking tools, which is consubstantial to the idea of law and justice, as the Court noted in, among others, the North Sea Continental Shelf 6 and Frontier Dispute (Burkina Faso/Mali)7 judgments. Second, coherence. This means that if two rules which both appear applicable to the same issue lead to contradictory results, either there must be some conflict of norms rule in order to settle such a conflict, or the rules concerned must be interpreted harmoniously. This is what the Court has generally done, including through the use of rules such as ‘lex specialis derogat legi generali’. It is true that, when confronted with taking politically sensitive positions in the Nuclear Weapons advisory opinion requested by the General Assembly, the Court chose not to choose.8 But this should rather remain an exception. 2 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 178. 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, ICJ Reports 1971, p. 31, para. 53. 4 Advisory Committee of Jurists, Documents presented to the Committee relating to existing plans for the establishment of a Permanent Court of International Justice, 1920, 360–361, 371, http://www.icj-cij.org/pcij/other-documents.php?p1=9&p2=8 (accessed February 20, 2014); Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 16th– July 24th 1920, with Annexes (The Hague: Van Langhuysen, 1920), 295–297, 345–346. 5 The Case of the S.S. “Lotus”, Judgment of 7 September 1927, PCIJ, Series A, No. 10, p. 18. 6 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, pp. 46–47, para. 85. 7 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, ICJ Reports 1986, p. 633, para. 149. 8 See our commentary in Marcelo G. Kohen, “L’avis consultatif de la CIJ sur la Liceité de la menace ou de l’emploi d’armes nucléaires et la fonction judiciaire”, The European Journal of International Law 8 (1997): 336.

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Third, unity. This is the idea of applying rules that are part of a larger whole. For this whole to exist and take shape, it is vital that there be a certain number of principles which are at the basis of the legal corpus, and which constitute its framework. As the Chamber of the Court stated in the Gulf of Maine case, these are “rules of international law in whose case the use of the term ‘principles’ may be justified because of their more general and more fundamental character”.9

Fundamental Principles of International Law

Let us turn now to these fundamental principles. This paper will mostly focus on the Court’s contribution to determining the content of the fundamental principles of international law, those, that is, which are at the summit of the system because of their content, and which contribute to giving the system its aim. We find the fundamental principles of contemporary international law in the Charter of the United Nations, albeit formulated in different ways and in different places. There is nothing surprising in the fact that in its first judgment, in the Corfu Channel case of 1949, “elementary considerations of humanity”10—a notion which heralded the importance of the protection of human rights as a fundamental principle—and respect for the territorial sovereignty of States both appear in the Court’s legal argumentation. Some decades later, the Court took advantage of the Friendly Relations Declaration contained in General Assembly Resolution 2625 (XXV) to identify the fundamental principles, establish their content and affirm their customary character. The Court has gone farther than simply restating the text of the Charter or of General Assembly resolutions when having to apply these principles to the cases for which it has been seized. The following principles are identified in the Friendly Relations Declaration: (a) Refraining from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; (b) The principle that States shall settle their international disputes by peaceful means; 9 10

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Reports 1984, pp. 288–290, para. 79. Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 22.

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(c) The duty not to intervene in matters within the domestic jurisdiction of any State; (d) The duty of States to cooperate with one another; (e) The principle of equal rights and self-determination of peoples; (f) The principle of sovereign equality of States; (g) The principle that States shall fulfil in good faith the obligations they assume. In this text, I will leave aside the analysis of the principles of cooperation and sovereign equality,11 and I will add another principle, which today is undoubtedly a fundamental principle, and which is only mentioned as part of the other principles in Resolution 2625 (XXV): the respect of the fundamental rights of the human person. The greatest contribution made by the Court with regard to fundamental principles begins in the 1970s. Having rejected the existence of an actio popularis in international law in its 1966 judgment in the South-West Africa cases,12 the Court found it appropriate to mention in an obiter dictum of its following judgment, in the Barcelona Traction case, that certain obligations relative to the protection of human rights had an erga omnes character.13 Soon after, its advisory opinions on Namibia and Western Sahara would allow the Court to affirm the legal nature of the principle of self-determination, and to ascertain its content.14

The Right of Peoples to Self-determination

Let us begin with the principle of self-determination. It is undoubtedly thanks to the Namibia and Western Sahara advisory opinions that the legal nature of the principle was no longer questioned. The Court affirmed the customary character of Resolution 1514 (XV) and the rules relating to decolonisation, clarifying the role of the General Assembly in the matter, and ruling out the possibility for administering powers to unilaterally decide the fate of territories 11

12 13 14

For our analysis of the principle of equal sovereignty of States see Marcelo Kohen, “Article 2, paragraphe 1,” in La Charte des Nations Unies, Commentaire article par article, ed. JeanPierre Cot, Alain Pellet and Mathias Forteau, 3rd edition (Paris: Economica, 2005), 399–416. South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ Reports 1966, p. 47, para. 88. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Reports 1970, p. 32, paras. 33–34. Namibia, Advisory Opinion, ICJ Reports 1971, p. 31, para. 52; Western Sahara, Advisory Opinion, ICJ Reports 1975, pp. 31–33, paras. 54–59.

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undergoing the process of decolonisation. The Court also emphasised that to hold this right, it is necessary to be recognised as a ‘people’, mentioning that in some cases the General Assembly has not granted this classification to given populations. The advisory opinion of 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory applied this idea to a concrete situation, underlining that the existence of a ‘Palestinian people’ was no longer in issue, and that even Israel had recognised the existence of such a people, with the corollary right to self-determination.15 The 1995 East Timor judgment, while upholding the inability of the Court to exercise its jurisdiction, underlined the erga omnes character of the right of peoples to self-determination.16 In its Kosovo advisory opinion, the Court decided not to examine whether a right to unilaterally declare independence applied, and purportedly did not examine the applicability, or inapplicability, of the right to self-determination to the situation under consideration.17 However, a careful reading allows some further conclusions to be drawn regarding the latter principle. The Court recognised that a significant number of States, those born from decolonisation, were created thanks to the exercise of a right to independence, resulting from the principle of self-determination.18 It noted that some unilateral declarations of independence were made outside this context.19 The conclusion which follows is simple: where self-determination is applicable, the right to create a new State exists, and in other cases it does not. The Court also mentioned that widely divergent views exist on the point of knowing whether, aside from cases of decolonisation or foreign domination, the right to self-determination authorises one part of the population of a State to separate from it.20 The Court found the same regarding the doctrine of ‘remedial secession’.21 The Court’s finding of a deep divergence within the international community regarding these two propositions excludes the possibility of affirming the existence of customary rules in the matter, although not putting an end to the debates surrounding the possible interpretation of the principle of self-determination. 15

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, pp. 182–183, para. 118. 16 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 102, para. 29. 17 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 438, para. 83. 18 Ibid., p. 436, para. 79. 19 Ibid. 20 Ibid., p. 438, para. 82. 21 Ibid.

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The Prohibition of the Threat or Use of Force

Another important fundamental principle of international law which has been clarified in the Court’s jurisprudence is that of refraining from the threat or use of force in international relations, of which the judgment in Military and Paramilitary Activities in and against Nicaragua is without a doubt the most significant landmark. The 1986 judgment had the great merit of setting aside permissive interpretations, outlawing armed reprisals and indirect aggression, and keeping collective self-defence within its proper bounds.22 It also distinguished the gravest forms of the use of force, such as aggression, from other less severe ones.23 This judgment deliberately did not touch on the notion of ‘preventive self-defence’,24 but it should be noted that the Court had no reason to pronounce itself on this matter in the context of the case. On the other hand, the Court clearly fixed the scope of self-defence and the conditions it must meet, notably necessity and proportionality.25 As for the 2004 advisory opinion on the Wall, it also restricted the situations in which it was possible to validly invoke self-defence, limiting it to the sphere of inter-state relations, and excluding it in relation to the repression of terrorism within territories which are under the jurisdiction or control of the same State invoking self-defence.26 The DRC v. Uganda judgment followed the same logic. In this judgment, the Court further clarified the scope of self-defence in terms which are of continued relevance. To quote: Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including, in particular, recourse to the Security Council.27

22

23 24 25 26 27

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, pp. 102–106, paras. 193–201 and pp. 110–111, paras. 210–211. Ibid., p. 101, para. 191. Ibid., p. 103, para. 194. Ibid., p. 122, para. 237. Advisory Opinion, ICJ Reports 2004, p. 194, para. 139. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, pp. 223–224, para. 148.

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In the context of the use of force, the Wall opinion explicitly reaffirmed a corollary of the prohibition: “the illegality of territorial acquisition resulting from the threat or use of force”.28

Respect for Territorial Integrity

Respect for territorial integrity was mentioned as an autonomous principle in the 1986 Nicaragua judgment. The first two judgments of the two Hague Courts, respectively those in the Lotus and the Corfu Channel cases, had however already mentioned the particular importance of the rule. As was stated in the Lotus case, the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary— it may not exercise its power in any form in the territory of another State.29 The Court made the following statement in the Corfu Channel case: “Between independent States, respect for territorial sovereignty is an essential foundation of international relations”.30 In its advisory opinion on Kosovo, the Court arrived at the conclusion that the principle only applies in the sphere of inter-State relations.31 Practice shows, however, that the Security Council has often addressed non-state actors in the context of non-international armed conflict, calling on them to respect the territorial integrity of the States concerned, as demonstrated by resolutions adopted in respect of, for example, the conflicts in Bosnia-Herzegovina, Croatia, Georgia, Azerbaijan, the Democratic Republic of the Congo, and Sudan.32 28 Advisory Opinion, ICJ Reports 2004, p. 171, para. 87. 29 Judgment of 7 September 1927, PCIJ, Series A, No. 10, p. 18. 30 Judgment, ICJ Reports 1949, p. 35. 31 Advisory Opinion, ICJ Reports 2010, p. 437, para. 80. 32 See in particular UNSC Res. 787 (1992) concerning Bosnia and Herzegovina, in which the Security Council “[s]trongly reaffirms its call on all parties and others concerned to respect strictly the territorial integrity of Bosnia and Herzegovina, and affirms that any entities unilaterally declared or arrangements imposed in contravention thereof will not be accepted”. Similarly, UNSC Res. 971 (1995) “calls upon the parties to intensify efforts [. . .] to achieve an early and comprehensive political settlement of the conflict, including on the political status of Abkhazia, fully respecting the sovereignty and territorial integrity of the Republic of Georgia” (emphasis added). Among others, cf. on Georgia, UNSC Res. 876 (1993), 896 (1994) and 906 (1994); on Azerbaijan, UNSC Res. 882 (1993), 853 (1993), 874 (1993) and 884 (1993); on the DRC, UNSC Res. 1756 (2007) and 1771 (2007); on Sudan,

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Non-Intervention Another principle which has been the object of attention since the beginning of the present Court’s activities is that of non-intervention. In its judgment in the Corfu Channel case, the Court categorically condemned non-compliance with the principle: The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law.33 It was however once again in the Nicaragua judgment of 1986 that the Court clarified the limits of the principle.34 The judgment established that an intervention is illicit when it concerns those matters on which each State may freely decide, such as the choice of a political, economic, social and cultural system, and the conduct of external relations.35 We do know, of course, that these choices are not in fact entirely free, as they depend on the respect of other rules of international law, such as the respect for the various aspects of fundamental human rights. In the context of the principle of non-intervention, nearly thirty years ago the Court elaborated—on the basis of the Red Cross principles—the fundamental elements of what constitutes humanitarian assistance: it must be dedicated to achieving its true purpose, that is, “ ‘to prevent and alleviate human suffering’, and ‘to protect life and health and to ensure respect for the human being’; it must also, and above all, be given without discrimination to all in need” and not only to one specific group.36

Respect for Human Rights

This reference to the limits of the principle of non-intervention allows us to move on to another fundamental principle which is of great importance in the world of today: the respect for human rights. UNSC Res. 1769 (2007); on Kosovo, UNSC Res. 1160 (1998), 1199 (1998), 1203 (1998) and 1244 (1999). 33 Judgment, ICJ Reports 1949, p. 35. 34 Marcelo Kohen, “The Principle of Non-Intervention 25 Years after the Nicaragua Judgment,” Leiden Journal of International Law 25 (2012): 157–164. 35 Judgment, ICJ Reports 1986, p. 108, para. 205. 36 Ibid., p. 125, para. 243.

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After the wake-up call in Barcelona Traction, the Court proved itself to be more receptive to the matter of human rights. In the Tehran Hostages case, it went beyond the strictly applicable law to refer to deprivation of freedom, detention of persons in conditions of hardship and physical constraint as actions contrary to the Charter and the Universal Declaration of Human Rights.37 The Court has even subsequently had the opportunity to apply a number of universal and regional human rights treaties. The Court’s contribution to clarifying the scope of these treaties is particularly important. They do not cease to apply in cases of armed conflict—international humanitarian law is only lex specialis in such a situation—and States parties have the obligation to apply these treaties wherever they exercise jurisdiction, even outside their territory, as the Court showed in its advisory opinions on Nuclear Weapons38 and the Wall39 and in the DRC v. Uganda judgment.40 It remains to be seen whether the Court will push these advances further in its future case law.

Peaceful Settlement of International Disputes

Both the Permanent Court and the current Court have had the opportunity to decide on a variety of aspects relating to the various means of peaceful settlement of disputes, particularly negotiation and judicial settlement. The dictum according to which judicial settlement of international disputes “is simply an alternative to the direct and friendly settlement of such disputes between the Parties”41 is well known. The content of the obligation to negotiate has been continuously clarified, from the Free Zones42 and Railway Traffic between Lithuania and Poland43 cases to the judgments in the North Sea Continental

37

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 42, para. 91. 38 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 240, para. 25. 39 Advisory Opinion, ICJ Reports 2004, pp. 177–181, paras. 104–113. 40 Judgment, ICJ Reports 2005, pp. 243–245, paras. 216–221. 41 Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, PCIJ, Series A, No. 22, p. 13. 42 Ibid. 43 Railway Traffic between Lithuania and Poland, Advisory Opinion of 15 October 1931, PCIJ, Series A/B, No. 42, p. 116.

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Shelf,44 Fisheries Jurisdiction,45 Pulp Mills,46 and Former Yugoslav Republic of Macedonia v. Greece47cases. The Court has however gone even further, in some cases imposing the obligation to negotiate on the parties to a dispute, as this obligation “merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations”.48 The Court has underlined its nature as an obligation of performance, rather than a principle of abstention: it has however also to recall a further principle of international law, one which is complementary to the principles of a prohibitive nature examined above, and respect for which is essential in the world of today: the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means.49

Good Faith

The Court has also reaffirmed the importance of good faith in international relations in a variety of different contexts, whether treaty interpretation or the conduct of negotiations. In the Nuclear Tests cases, it characterised the principle as “[o]ne of the basic principles governing the creation and performance of legal obligations [. . .]. Trust and confidence are inherent in international co-operation”.50 In its judgment on preliminary objections in the Border and Transborder Armed Actions case, the Court indicated, however, that good faith does not apply in isolation: the principle of good faith “is not in itself a source of obligation where none would otherwise exist”.51 Already in the Gulf of Maine case, the Court had found the notions of acquiescence and estoppel

44 Judgment, ICJ Reports 1969, pp. 47–48, paras. 86–87. 45 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports 1974, p. 32, para. 75. 46 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 67, para. 146. 47 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment, ICJ Reports 2011, pp. 39–40, paras. 130–132. 48 Judgment, ICJ Reports 1969, p. 47, para. 86. 49 Judgment, ICJ Reports 1986, p. 145, para. 290. 50 Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 268, para. 46. 51 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, pp. 105–106, para. 94.

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to stem from good faith and equity.52 This means that these two tools should not be used to encourage trickery in international relations, but rather as a guarantee of their stability and foreseeability, two of the main objectives of any legal system. Conclusion In concluding, it is worth commenting upon a notion that is also consubstantial to the idea of a ‘legal system’: jus cogens. We are all aware of how timid the Court initially was in embracing this notion, to the point that all the Nicaragua judgment did was to put the characterisation of the principle of non-use of force as jus cogens in the mouth of the International Law Commission, without however explicitly validating it.53 We know that the Nuclear Weapons opinion introduced the notion of ‘intransgressible’ norms of international humanitarian law.54 Having finally qualified the prohibition of the crime of genocide as a norm of jus cogens in the DRC v. Uganda55 case, the Court merely supposed, for the sake of argument in the recent Germany v. Italy case, that the prohibition to kill civilians in an occupied territory, or to deport them for use as forced labour, are norms of jus cogens.56 This timidity did not fail to surprise more than one observer. On the contrary, there is reason to welcome the assessment made by the Court in its judgment in the Belgium v. Senegal case, where it recognises that “the prohibition of torture is part of customary international law and it has become a peremptory norm ( jus cogens)”.57 This comment on jus cogens does not take away from the importance of the contribution made by the International Court of Justice to establishing the existence and content of fundamental principles, and the implementation of international law as a true legal system, which has been attempted to demonstrate in this brief overview. The observations of the Court in this domain subsequently become the interpretation generally followed by the i­nternational 52 Judgment, ICJ Reports 1984, p. 305, para. 130. 53 Judgment, ICJ Reports 1986, p. 99, para. 187. 54 Advisory Opinion, ICJ Reports 1996, p. 257, para. 79. 55 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, pp. 31–32 and p. 52, paras. 64 and 125. 56 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, ICJ Reports 2012, pp. 140–142, paras. 93–97. 57 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 457, para. 99.

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community. While the Court is the principal judicial organ of the United Nations, its authority is not only as the “general guardian of legality within the [UN] system”, but also, as Judge Lachs recalled, “[i]n fact the Court is the guardian of legality for the international community as a whole, both within and without the United Nations”.58

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Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, Separate Opinion of Judge Lachs, ICJ Reports 1992, p. 138.

chapter 11

The International Court of Justice: Bestriding Past and Present Mohamed Bennouna Taking one’s seat on the bench in the newly renovated Great Hall of Justice at the Peace Palace, one cannot avoid the sense of a dialogue between two worlds—that of yesterday and that of today—with which this place is per‑ meated, just as it permeates the institution which it houses, the International Court of Justice. You feel immediately how difficult it has been for the designer to bestow a varnish of modernity on a space which overwhelms us by its size, just as it intimidates us with its stained glass, its frescoes and its sculptures, replete with allegories that carry us back, ineluctably, to a long‑gone past. When I pass through the Palace gates, I have to make a conscious effort not to cut myself off mentally from today’s vibrant world. All around me, calm and serenity reign, an invitation to meditation. When I see a heron rising skyward, I am tempted to quote the poet Bernard Noël: “et pour la première fois nous entendons le froissement de l’air sous l’aile de l’oiseau . . .” (“and for the first time we hear the airy rustle ’neath the avian wing . . .”).1 As we search for signs of peace regained, Erasmus’s pointing finger directs us to the neo‑Gothic Palace. But already, our approach to the judges’ building, and still more so to the Academy of International Law, marks a return to modernity, while the span of the Palace library, taut as a bowstring, symbolises the tension and continuity between eras. Two eras, punctuated by two world wars, each marked by the euphoria of the return of peace (the ‘Roaring Twenties’, and the ‘thirty glorious years’ after 1945) and the reshaping of the global scene: from the Depression of the 1930s to the Cold War of the 1950s. Two eras whose starkly contrasting natures would be reflected in the stat‑ utes and modus operandi of their respective international courts, albeit that commitments to the jurisdiction of one, the Permanent Court of International * Judge at the International Court of Justice. 1 Bernard Noël, “L’été langue morte”, in La Chute des temps (Paris: Gallimard, 1993), 82 (English translation by author).

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Justice, remain valid commitments to the other, the ICJ, thanks to Article 37 of the ICJ Statute. Thus, while the ICJ is bound up with the creation of the United Nations in terms of its very ideology (peace through law), and formally designated by the Charter as the Organization’s principal judicial organ, the PCIJ came into being independently of the League of Nations, although the two institutions maintained numerous links. Moreover, the work of the League and of the PCIJ would remain marked by the Eurocentric character of their members and of the issues addressed by them, whereas we are seeing a progressive universali‑ sation in the activities of the United Nations and the ICJ, in terms of both the countries and the areas of law involved.2 Can it, however, be said that the present Court is secure from the influence of yesterday’s world? Can it resist the temptation to fall back on established traditions? International law emerged, and has perpetuated itself, within a decentral‑ ised community of sovereign States, with roots in practice and jurisprudence that reach back over several centuries. Concepts developed over the years have retained the same denomination despite having undergone far‑reaching changes in their meaning and scope. A prime example is the notion of sovereignty or sovereign equality (Article 2, paragraph 1, of the Charter), which no longer has the same sense that it once did. It is clear that the sovereign State is no longer an opaque entity that inter‑ national law has access to only through the medium of national authorities or domestic law. International law has effectively adapted itself so that it not only addresses the essential aspects of relations between States, but also deals with people’s daily lives and their fundamental rights, in particular those relating to their physical integrity and their dignity. There is now continuity between international law and national law, which can no longer be distinguished from one another either by the issues which they address or even by their subjects, since many norms of international law are now directly applicable within States. It may be, moreover, that international custom could now take over from international conventions, which are depen‑ dent on the will of States parties, since custom may be invoked by every indi‑ vidual, wherever located, and, if the norm concerned has the character of a peremptory norm ( jus cogens) of general international law, no derogation is permitted from it.

2 Kenneth J. Keith, “The International Court of Justice: Reflections on the Electoral Process,” Chinese Journal of International Law 9 (2010): 49–80.

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It was in this context that, in its judgment of 20 July 2012 in the case between Belgium and Senegal, the Court, having analysed the United Nations Convention of 10 December 1984 against Torture and other Cruel, Inhuman or Degrading Punishment, stated that “the prohibition of torture is part of international customary law and [. . .] has become a peremptory norm”.3 In other words, torture cannot be legitimated through the conclusion of a treaty between the States concerned. Sovereign equality has also been invoked by States, in the traditional ver‑ sion of international law, in order to enable them, in particular in relation to acts jure imperii, to escape the jurisdiction of other States. However, in light of the evolution in the concept of sovereignty, which is closely linked nowadays with the notion of State responsibility, can it be said that a State is still entitled to rely on its immunity before a foreign court, while refusing to assume any responsibility towards the victims of the wrongful acts attributable to it?4 The judgment of the ICJ in the case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) of 3 February 2012 failed to answer the question of how immunity from suit can be reconciled with the right of the individual to access to justice. As the Institute of International Law noted in its “Resolution on the Immunity from Jurisdiction of the State and of Persons who Act on Behalf of the State in case of International Crimes”, adopted at its Naples session in 2009: “[i]mmunities should not constitute an obstacle to the appropriate reparation to which victims of crimes [. . .] are entitled” (Article 2, paragraph 2). It might thus be that future judicial develop‑ ments will intervene to make good this gap in the law. In general, the ICJ should be cautious in seeking to rely on precedents rooted in yesterday’s world, when international law was still in the process of establishing its essential being and raison d’être. Today it is a fully‑fledged discipline, existing by virtue of its achievements and the way it is perceived not only by international actors, but also by non‑governmental organizations, which invoke international law as a means of better defending their members and achieving their objectives. In certain areas, international law is indeed becoming the only means of recourse against certain negative impacts of the phenomenon of globalisation on the world’s peoples.

3 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 457, para. 99. 4 See Lorna McGregor, “State Immunity and Human Rights—Is There a Future after Germany v. Italy?,” Journal of International Criminal Justice 11 (2013): 138.

154

Bennouna

It has thus been rightly pointed out how far the famous obiter dictum in the Lotus case, which makes the rules of international law dependent solely on the will of States, has ceased to correspond to the current state of inter­ national law.5 The development of the international corpus juris today allows us to dis‑ tance ourselves from the timid positivism in which Dionisio Anzilotti sought refuge when faced with the dilemma of having to choose between a ‘natural law’ transcending positive law and an ‘international state of nature’, the simple expression of power relationships, including the right to enter into war.6 Sovereignty can now only validly express itself within the framework of international legality, and it is for judges or arbitrators, when the matter comes before them, to rule on the applicable law. This is why there is so much criticism of the notorious paragraph 2 E of the operative part of the Court’s advisory opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, regarding this as a ‘non liquet’,7 a refusal to state the law. Thus the Court, thanks to the casting vote of its President, Judge Bedjaoui, refused to rule on the legality or illegality of the threat or use of nuclear weap‑ ons “in an extreme situation of self‑defence, in which the very survival of a State would be at stake”.8 The point at issue was whether the Court, in replying to the question put to it by the United Nations General Assembly, should confine itself to the rules governing the use of force or whether, on the contrary, it must take account of the entire body of rules of international law in order to give its opinion (in particular, humanitarian law and the jus in bello). Nowadays, it is general international law that determines the legal order in which the individual acts of States must necessarily operate. As Professor Tomuschat has pointed out, “the concept of general inter‑ national law [. . .] has sharpened our perception of the systemic structure of international law. General international law is constituted by the axiomatic premises of the international legal order or is derived from it.”9 5 Alain Pellet, “Lotus que de sottises on profère en ton nom! Remarques sur le concept de souveraineté dans la jurisprudence de la Cour mondiale,” in L’État souverain dans le monde d’aujourd’hui—Mélanges en l’honneur de J.‑P. Puissochet (Paris: Pedone, 2008), 215. 6 Denis Alland, Anzilotti et le droit international public—un essai (Paris: Pedone, 2012), 25. 7 See, in particular, the dissenting opinion of Judge Rosalyn Higgins, ICJ Reports 1996, p. 583. 8 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 266, para. 105, subpara. (2) E. 9 Christian Tomuschat, “What is general international law?,” in Guerra y Paz: 1945–2009, Obra Homenaje al Dr. Santiago Torres Bernárdez (Bilbao: Universidad del País Vasco, 2010), 347.

Bestriding Past and Present

155

An example of this is the entire jurisprudential structure built up by the ICJ in developing an appropriate method for the delimitation of maritime areas between States and reaching an ‘equitable solution’. In the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), the Court was at pains to emphasise that its “equitable principles” were applied “as a part of general international law”.10 As the principal judicial organ of the United Nations, the Court operates within a structured legal framework, whose shape evolves to meet the needs of international life. New members have no choice but to become part of that framework, since it is the guarantor of their existence and of their enduring presence as subjects of law. The Court seeks likewise to ensure respect for the values of civilisation set out in the Preamble to the Organization’s Charter and its Purposes and Principles. The Court cannot merely be perceived as a reference for judicial precedents, including in cases where it affirms the existence of customary international law. The Court prevails over the other specialised courts and tribunals when it rules on the state of general international law, guaranteeing its unity thereof.11 The Court also plays an important role in the context of the United Nations, as its principal judicial organ, particularly when it is called upon to give its opinion on legal questions which are confronting the political organs of the universal organization, before they take action. In a world torn between the siren song of globalisation and the temptation to retreat into one’s particular identity, the Court hands down the message of the primacy of peace over the demons of violence and terror, a message carried by all that unites and binds humanity, over and above the hazards of ethnic or national identity. This message is not measured by the number of cases dealt with by the Court, but above all by the educational function which, patiently and perseveringly, it seeks to fulfil, in order that international law may play its part, and make its presence and impact felt, in the management of world affairs. International justice remains the landmark to which we turn to in order to forestall a spiral of violence and terror. Its efficiency depends on the confi‑ dence placed in it by all the actors who operate in the international field.

10 11

Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, pp. 39–40, para. 46. See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, pp. 206–211, paras. 396–407.

Table of Cases Access to German Minority Schools in Upper Silesia, Advisory Opinion of 15 May 1931, PCIJ, Series A/B, No. 40 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403 Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, ICJ Reports 1956, p. 23 Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 3 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 3 Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, ICJ Reports 2000, p. 12 Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment, ICJ Reports 1959, p. 127 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, p. 639 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, ICJ Reports 2012, p. 324 Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, ICJ Reports 1952, p. 93 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Order of 3 December 1971, ICJ Reports 1971, p. 350 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, ICJ Reports 1972, p. 46 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, p. 166 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1982, p. 325

4 10, 21, 24, 65– 68, 97, 105–106, 143, 145 66

54, 79, 89

56 36

35

9, 23–24, 121

24, 29–30, 121–122

35, 84 75

98 71

65, 71

158 Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1987, p. 18 Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), Judgment, ICJ Reports 1958, p. 55 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, p. 3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, ICJ Reports 1996, p. 595 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment, ICJ Reports 2011, p. 644 Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, p. 353 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011, p. 70 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, ICJ Reports 1990, p. 64

Table of Cases 71

8

47, 90

108–109

9

9, 155

148

80

9–10, 15, 21, 41

76–77

159

Table of Cases Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, ICJ Reports 2000, p. 111 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168 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, ICJ Reports 2002, p. 219 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p. 6 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 3 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 12 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Reports 1970, p. 3 Belilos v. Switzerland, Merits and Just Satisfaction, Judgment of 29 April 1988, ECtHR, Series A, No. 132 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, p. 69 Case concerning the Factory at Chorzów, Merits, Judgment of 13 September 1928, PCIJ, Series A, No. 17 Case of Baena Ricardo et al. (270 Workers) v. Panama, Judgment of 28 November 2003 (Competence), IACtHR, Series C, No. 104 Case of Barrios Altos v. Peru, Judgment of 14 March 2001 (Merits), IACtHR, Series C, No. 75 Case of Barrios Altos v. Peru, Judgment of 3 September 2001 (Interpretation), IACtHR, Series C, No. 83 Case of Barrios Altos v. Peru, Judgment of 30 November 2001 (Reparations and Costs), IACtHR, Series C, No. 87

9, 80, 90

144, 147

35

42, 149

129–130, 133, 136 9, 40, 78, 84, 113–116, 125–127, 130–136 43, 142, 147

11 148

129 31–32

18, 28 18, 28 18, 28

160 Case of Benjamin et al. v. Trinidad and Tobago, Judgment of 1 September 2001 (Preliminary Objections), IACtHR, Series C, No. 81 Case of Constantine et al. v. Trinidad and Tobago, Judgment of 1 September 2001 (Preliminary Objections), IACtHR, Series C, No. 82 Case of Hilaire v. Trinidad and Tobago, Judgment of 1 September 2001 (Preliminary Objections), IACtHR, Series C, No. 80 Case of Ivcher Bronstein v. Peru, Judgment of 24 September 1999 (Competence), IACtHR, Series C, No. 54 Case of La Cantuta v. Peru, Judgment of 29 November 2006 (Merits, Reparations and Costs), IACtHR, Series C, No. 162 Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, PCIJ, Series A, No. 22 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, p. 6 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), joined with Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Requests for the Modification of the Order of 8 March 2011 Indicating Provisional Measures, Order of 16 July 2013 Certain Criminal Proceedings in France (Republic of the Congo v. France), Order of 16 November 2010, ICJ Reports 2010, p. 635 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, p. 151 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, p. 240 Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, ICJ Reports 2005, p. 6 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, ICJ Reports 2008, p. 177

Table of Cases 11

11

11

11 28

53, 147 80

30

119–120

100–101, 104, 108, 110 35

119–120 131–132

161

Table of Cases Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, ICJ Reports 1950, p. 4 Constitutional Court Case, Judgment of 31 January 2001, IACtHR, Series C, No. 71 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p. 13 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 4 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Reports 1984, p. 246 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p. 62 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Case No. 16, Judgment of 14 March 2012 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 90 Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion, ICJ Reports 1954, p. 47 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, ICJ Reports 1972, p. 30 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, ICJ Reports 1974, p. 175 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment, ICJ Reports 1998, p. 432 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports 1974, p. 3 Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005, p. 90 Frontier Dispute (Burkina Faso/Niger), Judgment, ICJ Reports 2013, p. 44

98

11, 28 155 48, 141, 145–146 141, 148–149

14, 64

24

8–9, 35, 106, 143 99–100, 110–111

76

49 122–124 148 58 29, 58

162 Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, ICJ Reports 1986, p. 3 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, ICJ Reports 1986, p. 554 German Settlers in Poland, Advisory Opinion of 10 September 1923, PCIJ, Series B, No. 6 Greco-Bulgarian “Communities”, Advisory Opinion of 31 July 1930, PCIJ, Series B, No. 17 Hornsby v. Greece, Judgment of 19 March 1997, ECtHR Reports 1997-II, No. 33 I. Ilaşcu, A. Leşco, A. Ivanţoc and T. Petrov-Popa v. Moldova and the Russian Federation, Application No. 48787/99, ECtHR Decision on Admissibility of 4 July 2001 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950, p. 65 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, p. 73 Interpretation of the Statute of the Memel Territory, Preliminary Objection, Judgment of 24 June 1932, PCIJ, Series A/B, No. 47 José Ernesto Medellín, Petitioner v. Texas, Supreme Court of the United States, 552 U.S. 491 (2008) 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, ICJ Reports 2012, p. 10 Judgment No. 3152, ILOAT, 6 February 2013 Judgments of the Administrative Tribunal of the ILO upon Complaints made against the UNESCO, Advisory Opinion, ICJ Reports 1956, p. 77 Juridical Condition and Human Rights of the Child, Advisory Opinion of 28 August 2002, IACtHR, Series A, No. 17 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion of 17 September 2003, IACtHR, Series A, No. 18

Table of Cases 79–80, 83

9, 140 4 4 31 11

35, 65

65–66, 139

56

114, 116, 134 3–4, 10, 64–65, 71–73

73 64–65, 71–72

14 14, 20

163

Table of Cases Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99 Jurisdiction of the Courts of Danzig, Advisory Opinion of 3 March 1928, PCIJ, Series B, No. 15 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, p. 9 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 466 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Provisional Measures, Order of 15 March 1996, ICJ Reports 1996, p. 13 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Preliminary Objections, Judgment, ICJ Reports 1998, p. 275 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 303 Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), Judgment, ICJ Reports 1992, p. 351 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66 Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 124 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, ICJ Reports 2004, p. 279

9, 127–128, 135–136, 149, 153 4 78, 86, 127, 134 9, 83, 125–127, 130, 132, 134, 136 9, 77–78, 80

35, 59

59

58

14, 47, 95–97, 102–105, 108, 111, 140, 142 64, 68, 96–97, 143–145, 147 69–70, 140, 147, 149, 154 65 35 35

164 Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 761 Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 916 Legal Status of the South-Eastern Territory of Greenland, Order of 3 August 1932, PCIJ, Series A/B, No. 48 Loizidou v. Turkey, Preliminary Objections, Judgment of 23 March 1995, ECtHR, Series A, No. 310 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, ICJ Reports 1984, p. 169 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 392 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 Minority Schools in Albania, Advisory Opinion of 6 April 1935, PCIJ, Series A/B, No. 64 Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, Judgment, ICJ Reports 1954, p. 19 North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, p. 3 Nottebohm Case, Second Phase, Judgment, ICJ Reports 1955, p. 4 Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 253 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 3

Table of Cases 42 42

79 11 78

35, 39, 51–52, 56, 87

35, 144–146, 148–149 4 9, 35, 106

140, 147–148

9 148 24, 68, 148 57, 59–60, 89

165

Table of Cases Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 114 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, ICJ Reports 1998, p. 115 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 422 Railway Traffic between Lithuania and Poland, Advisory Opinion of 15 October 1931, PCIJ, Series A/B, No. 42 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Nigeria v. Cameroon), Preliminary Objections, Judgment, ICJ Reports 1999, p. 31 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, ICJ Reports 2011, p. 537 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, ICJ Reports 2008, p. 311 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, ICJ Reports 2009, p. 3

89–90, 105, 107–108, 111, 150

107, 111

9, 30, 43–44, 128, 136, 149, 153 147 14, 140 59

10, 29, 76, 81–85, 88, 91

76, 84–85

114

84, 113–118, 134–135

166 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), ITLOS Case No. 17, Advisory Opinion of 01 February 2011 Rights of Minorities in Upper Silesia (Minority Schools), Judgment of 26 April 1928, PCIJ, Series A, No. 15 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ Reports 1966, p. 6 Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ, Series B, No. 5 Sydall v. Castings Ltd. [1967] 1 Q.B. 302 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, p. 659 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2007, p. 832 The Case of the S.S. “Lotus”, Judgment of 7 September 1927, PCIJ, Series A, No. 10 The Mavrommatis Palestine Concessions, Judgment of 30 August 1924, PCIJ, Series A, No. 2 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Pre-Trial Chamber I Decision of 29 January 2007 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Trial Chamber I Judgment of 14 March 2012 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion of 1 October 1999, IACtHR, Series A, No. 16 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, PCIJ, Series A/B, No. 44 Trial of Pakistani Prisoners of War, Interim Protection, Order of 13 July 1973, ICJ Reports 1973, p. 328 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 3

Table of Cases 24–25

35, 56 43, 142 64 86 58

58

140, 145, 154 35 24 24 14

4

9 9, 147

167

Table of Cases Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, ICJ Reports 1998, p. 248 Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014

9, 78, 86, 134

64, 142 44

Index administration of justice 31, 72, 79–80 advisory opinions see also International Court of Justice, advisory function; Permanent Court of International Justice, advisory function authorized bodies to request 14, 47, 52, 63, 71 departure from the terms of the question 65–67 discretion to give 64–65 due process and 70–73 fact-finding and 68–70 legal effects of 63–64, 71, 73 of the IACtHR 14, 20 of the ITLOS Seabed Disputes Chamber  24–25 subject-matter of 14, 63, 70–71 African Charter on Human and Peoples’ Rights 24, 121 African Court of Human and Peoples’ Rights 10 American Convention on Human Rights  17n51, 18, 32 armed conflict or activities 9, 41, 69, 75–86, 123, 144–145, 147 burden of proof 68–69, 73 Central American Court of Justice 2–3 compétence de la compétence 2, 43, 50 Convention for the Pacific Settlement of International Disputes 34 Convention on the Prevention and Punishment of the Crime of Genocide 41–43 crimes against humanity 12, 41, 133 decolonisation 63, 142–143 diplomatic protection 120–122 dispute settlement judicial 1, 4, 6, 8, 10, 14, 17–18, 22, 25, 37–38, 41, 48, 52–54, 56, 59–60, 92, 120, 147 peaceful 16, 37, 41, 48–49, 51–56, 58, 60–61, 79, 141, 147–148

domestic law effects of international legal obligations in 113–137, 152 influence on the development of international law 119, 124 interpretation by the ICJ 121–122 opposability to foreign States 122–124 duty to cooperate 52, 87, 142 environment 8, 44, 58 equity 140, 149, 155 European Convention for the Peaceful Settlement of Disputes 39, 119n1 European Convention on Human Rights 16, 31 European Court of Human Rights 10–11, 20–21, 24, 31 European Court of Justice 16, 22 fundamental principles of domestic law 20, 132 of international law 13, 20, 141–150 General Assembly general practice of the 97–98 implied powers of the 99–103, 110 procedural validity of resolutions of the  96–99, 110 relationship with the Security Council  53–54, 97–99, 101 request for an advisory opinion from the ICJ 96–97 support for judicial dispute settlement by the 37 general principles of law 19–21, 25, 140 genocide 12, 41–43, 149 good faith 142, 148–149 Hague Peace Conferences 1–2, 35–36 human rights international law of 26, 44, 63, 120–122, 130, 147, 152 treaty bodies 44, 72 tribunals 10–13, 19–20, 24, 26–28

170 violation of and respect for 9, 12, 23–24, 28, 90, 141–142, 146–147 Human Rights Committee 72 immunity of States and State officials  127–129, 133, 153 indispensable third party 9, 106n68 individuals access to courts and tribunals 1–6, 10, 31–32, 71–73, 153 as subjects of international law 7, 10–13, 21, 25, 29 cases concerning 8–10, 29–30, 119–122, 128–136, 147 Institute of International Law 153 Inter-American Court of Human Rights  10–11, 14, 17n51, 18, 20–21, 24, 28, 30–32 internal law see domestic law international community 8, 12–13, 16, 23, 25, 37, 45, 119, 137, 143, 149–150 International Convention on the Elimination of All Forms of Racial Discrimination 21, 80 International Court of Justice access to the 4–6, 8, 26, 34–37, 71–73, 106 advisory function see also advisory opinions 14, 36, 63–73 as the principal judicial organ of the United Nations 33–34, 45, 59n54, 60, 92, 120, 137, 149–150, 152, 155 binding force of judgments of the 51, 63, 114, 137 binding force of orders indicating provisional measures of the see provisional measures, binding effect of orders indicating compliance with decisions of the 47, 51n17, 52, 59n52, 114, 117, 125, 127, 132–137 costs of proceedings before the 37 interpretation proceedings see also provisional measures, interpretation proceedings and 76, 81–86, 113–118 intervention in proceedings before the 9 judicial review by the 61, 64n2, 71–73, 93–111 jurisdiction in interpretation proceedings 76, 82–86

index necessity of consent to 35–36, 38, 45, 50, 83 under a compromissory clause 15, 21–22, 37, 39–44, 80 reservations to compromissory clauses 42–43 under a special agreement (compromis) 37, 50 under the optional clause 15–16, 22, 33, 37–39, 80, 122, 151–152 reservations to optional clause declarations 22, 38–39, 122–123 termination of optional clause declarations 38–39 provisional measures see provisional measures relationship with the Security Council  47–61, 76, 80, 82, 87–92 responsibility for the maintenance of international peace and security  51–52, 61, 75–78, 82, 86, 92, 155 subject-matter of the dispute before the  10, 40–41, 49–50, 54, 58, 78–79, 85, 119–120, 123–124 international courts and tribunals compulsory jurisdiction 14–17, 22, 35–36, 50 cross-fertilisation 23–25, 30 growth of 7–8, 10, 22–23, 27, 29–30, 32 interaction with national courts 26–29 judgments compliance with see also International Court of Justice, compliance with decisions of the 30–32 motifs and dispositif 18 International Covenant on Civil and Political Rights 24, 72, 121 International Criminal Court 12, 16, 20, 24, 27 international criminal tribunals 11–13, 19–20, 26–27 international humanitarian law 9, 12, 26, 41, 63, 69, 90, 147, 149, 154 International Labour Organization Administrative Tribunal 64n2, 71–73 international law as a legal system 6, 19–20, 25–27, 139–141, 149, 154–155 founding fathers 7 inter-State dimension 7, 21, 152

index progressive development of 14, 18, 52, 153–155 International Law Commission 43, 149 Articles on State Responsibility 127–128, 136–137 international organizations 7, 13, 25, 29, 68, 70–72 International Tribunal for the Law of the Sea 17, 22, 24–25 judicial integrity 64–73, 92 jus ad bellum 69, 109, 154 jus cogens 44, 108–109, 149, 152–153 justice for individuals 4–5, 13, 26–27, 30 international 1, 7–8, 15, 18–21, 23, 26–27, 29, 59, 140, 155 legal order domestic 19–20, 25–27, 31, 95, 100, 113, 115–120, 122, 124–126, 132–133, 135–137 international 10, 16, 20, 26–27, 36, 75, 119, 137, 139–140, 149, 154 of the European Community 22 legal system see legal order; international law as a legal system “Lotus” principle 140, 145, 153–154 minorities 3n9, 4 negotiation 48–49, 53, 56, 78n12, 147–148 non-intervention 142, 146 non liquet 69–70, 154 obligations erga omnes 43–44, 142–143 ordre public 11, 21, 32 Pact of Bogotá 39 Peace Palace 1, 5, 7, 9, 34, 45, 75, 151 peremptory norms see jus cogens Permanent Court of Arbitration 1 Permanent Court of International Justice access to the 3–5 advisory functionsee also advisory opinions 13–14, 63n1, 64 jurisdiction under the optional clause 15, 151

171 relationship with the League of Nations 56, 152 Statute 2–3, 5, 14, 36, 151–152 provisional demilitarised zone 29, 81–82, 84, 91 provisional measures aggravation of the dispute and 54, 79, 82, 89 binding effect of orders indicating 76, 83, 88, 134 breaches of orders indicating 84 conditions for the indication of 76–78, 89–90 in situations involving armed hostilities 77–86 interpretation proceedings and 76, 81–86, 88, 114–115 lapse of 84–85 legal regime of 30 notification to the Security Council 52, 91–92 rights protected by 76–77, 82, 89–90 reparation 30, 32, 113–115, 120–137, 153 responsibility of individuals 12–13, 29 of States 12, 28–29, 32, 43, 57–59, 127–128, 136, 153 Rome Statute see International Criminal Court rule of law 6, 13–15, 18, 23, 25–27, 31–33, 36, 119–120, 137 Security Council acts under Chapter VI of the UN Charter 36–37, 47–61, 92, 103 acts under Chapter VII of the UN Charter 12, 36, 52n23, 57–61, 88, 103–104, 107–109 binding force of decisions of the 51, 52n23, 88, 104 discretionary power of the 103–111 general practice of the 96, 98 implied powers of the 57 non-compliance with judgments of the ICJ and the 47, 52–53, 92 procedural validity of resolutions of the 95–96, 110

172 relationship with the ICJ 47–61, 87–92, 105 request for an advisory opinion from the ICJ 47, 95–96 responsibility for the maintenance of international peace and security 49, 51–53, 60–61, 88, 92, 104 self-defence 69–70, 144, 154 self-determination 142–143 sovereign equality 142, 152–154 standing of individuals 6, 9–11, 21, 72 of States parties to multilateral treaties  43–44, 142 territorial sovereignty and integrity 9, 58–59, 79, 85, 141, 145 threat or use of force 38–39, 41, 78–80, 109, 122–123, 141, 144–146, 149, 154

index torture 149, 153 United Nations Administrative Tribunal 71 United Nations Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment 9, 30, 40, 152–153 United Nations Convention for the Protection of All Persons from Enforced Disappearance 40 United Nations Convention on the Law of the Sea 16–17 universal jurisdiction 9, 20, 30, 133 Vienna Convention on Consular Relations 24, 40, 113, 125–126, 130–134 Vienna Convention on the Law of Treaties 103, 136